TEJASWINI GAUD AND ORS. versus SHEKHAR JAGDISH PRASAD TEWARI AND OTHERS
[2019] 7 S.C.R. 335, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Facts
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TEJASWINI GAUD AND ORS.
v.
SHEKHAR JAGDISH PRASAD TEWARI AND OTHERS
(Criminal Appeal No. 838 of 2019)
MAY 06, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Hindu Minority and Guardianship Act, 1956: ss. 6, 13 –
Custody of a minor child – Writ of habeas corpus – Maintainability
of – On facts, father filed habeas corpus petition seeking custody
of minor child from the appellants-uncle and aunt of the minor child
– High Court directed issuance of writ of habeas corpus directing
the appellants to hand over the custody of the minor child to the
father – Justification of – Held: Appellants are the sisters and brother
of the mother of the child who do not have any authority of law to
have the custody of the minor child – As per s. 6, the father is a
natural guardian of the minor child and has the legal right to claim
the custody of the child – Father is the only natural guardian alive
and has neither abandoned nor neglected the child – Child went
into the custody of the appellants in unavoidable conditions, that is
due to illness of his mother and father – Merely because, the
appellants being the relatives took care of the child for some time,
they cannot retain the custody of the child – If no custody is granted
to the first respondent, the court would be depriving both the child
and the father of each other’s love and affection to which they are
entitled – As the child is in tender age i.e. 1½ years, her choice
cannot be ascertained at this stage – Keeping in
view the welfare of
the child and the right of the father to have her custody and after
consideration of all the facts and circumstances of the case, the
High Court was right in holding that the welfare of the child would
be best served by handing over the custody of the child to the father
– However, till the child settles down in the atmosphere of the father’s
house, the appellants to have visitation rights – Order of the High
Court is upheld subject to the said directions.
Writ: Writ of habeas corpus – Maintainability of, in child
custody matters – Held: Writ of habeas corpus is a prerogative
process for securing the liberty of the subject by affording an
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effective means of immediate release from an illegal or improper
detention – Writ extends its influence to restore the custody of a
minor to his guardian when wrongfully deprived of it – In child
custody matters, the power of the High Court in granting the writ
habeas corpus is qualified only in cases where the detention of a
minor by a person who is not entitled to his legal custody – In such
matters, the ordinary remedy lies only under the Hindu Minority
and Guardianship Act or the Guardians and Wards Act as the case
may be – It is only in exceptional cases, the rights of the parties to
the custody of the minor would be determined in exercise of extra-
ordinary jurisdiction on a petition for habeas corpus.
Disposing of the appeal, the Court
HELD: 1.1 Writ of habeas corpus is a prerogative process
for securing the liberty of the subject by affording an effective
means of immediate release from an illegal or improper detention.
The writ also extends its influence to restore the custody of a
minor to his guardian when wrongfully deprived of it. The
detention of a minor by a person who is not entitled to his legal
custody is treated as equivalent to illegal detention for the purpose
of granting writ, directing custody of the minor child. For
restoration of the custody of a minor from a person who according
to the personal law, is not his legal or natural guardian, in
appropriate cases, the writ court has jurisdiction.
[Para 13]
[347-F-G; 348-A]
1.2 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 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. [Para 18] [350-C-F]
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1.3 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.
[Para 19] [350-F-H; 351-A]
2.1 In the instant case, the appellants are the sisters and
brother of the mother 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 1½ years cannot express its intelligent preferences.
Hence, 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. [Para 20] [351-D-F]
2.2 The court while deciding the child custody cases is not
bound by the mere legal right of the parent or guardian. Though
the provisions of the special statutes govern the rights of the
parents or guardians, but the welfare of the minor is the supreme
consideration in cases concerning custody of the minor child. The
paramount consideration for the court ought to be child interest
and welfare of the child and due weight should be given to child’s
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ordinary comfort, contentment, health, education, intellectual
development and favourable surroundings. [Para 25, 26]
[353-E-F; G]
2.3 In the instant case, the father is the only natural guardian
alive and has neither abandoned nor neglected the child. Only
due to the peculiar circumstances of the case, the child was taken
care of by the appellants-relatives of the child’s mother Z. The
child S went into the custody of the appellants in strange and
unfortunate situation. During the fifth month of her pregnancy,
the mother Z was diagnosed with stage 3/4 breast cancer. Z gave
birth to child S on 14-08-2017. On 29-11-2017, respondent No.1
collapsed with convulsions due to illness. Upon his collapse, he
was rushed to hospital where he was diagnosed with Tuberculosis
Meningitis and Pulmonary Tuberculosis. He was kept on
ventilator for nearly eight days, during which period, appellants
took care of Z and the child. The first respondent had to undergo
treatment in different hospitals for a prolonged period. From 29-
11-2017 to June 2018, Z and S stayed at the residence of
appellant’s in Mumbai and Pune. Z passed away on 17-10-2018.
The respondent after recovering from his illness visited Pune to
seek custody of the child. But when they refused to hand over
the custody, the father was constrained to file the writ petition
seeking custody of the child. The child S thus went to the custody
of the appellants in unavoidable
conditions. Only the
circumstances involving his health prevented the father from
taking care of the child. Under Section 6 of the Act, the father is
the natural guardian and he is entitled to the custody of the child
and the appellants have no legal right to the custody of the child.
In determining the question as to who should be given custody
of a minor child, the paramount consideration is the ‘welfare of
the child’ and not rights of the parents under a statute for the
time being in force. [Para 31 and 32] [357-D-E; F-G; 358-A-C]
2.4 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 instant 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
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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. [Para 34] [358-F-H]
2.5 The child is only 1½ years old and the child was with
the father for about four months after her birth. If no custody is
granted to the first respondent, the court would be depriving
both the child and the father of each other’s love and affection to
which they are entitled. As the child is in tender age i.e. 1½ years,
her choice cannot be ascertained at this stage. With the passage
of time, she might develop more bonding with the appellants and
after some time, she may be reluctant to go to her father in which
case, the first respondent might be completely deprived of her
child’s love and affection. Keeping in view the welfare of the child
and the right of the father to have her custody and after
consideration of all the facts and circumstances of the case, it is
found that the High Court was right in holding that the welfare of
the child would be best served by handing over the custody of
the child to the first respondent. [Para 35] [359-A-D]
2.6 Taking
away the child from the custody of the appellants
and handing over the custody of the child to the first respondent
might cause some problem initially; but, that will be neutralized
with the passage of time. However, till the child is settled down
in the atmosphere of the first respondent-father’s house, the
appellants No. 1 and 2 shall have access to the child as stipulated.
The impugned judgment of the High Court is affirmed subject to
the above directions and observations. [Para 36, 37] [359-D-E;
360-A]
Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3
SCC 92 ; Sarita Sharma v. Sushil Sharma (2000) 3 SCC
14 ; [2000] 1 SCR 915 ; G. Eva Mary Elezabath v.
Jayaraj and Others 2005 SCC Online Mad 472 : AIR
2005 Mad 452 ; L. Chandran v. Mrs. Venkatalakshmi
& Another 1980 SCC Online AP 80 : AIR 1981 AP 1 ;
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Ravi Kant Keshri & Another v. Krishna Kumar Gupta
and Others 1992 SCC Online All 548 : AIR 1993 All
230 ; Suriez v. M. Abdul Khader and Others 2017 SCC
Online Kar 4935 ; Murari Lal Sharma and Another v.
State of West Bengal and Others 2013 SCC Online
23045 : AIR 2013 Cal 213 ; R. Suresh Kumar v. K.A.
Kavathi and Others MANU/TN/8529/2006 ; Athar
Hussain v. Syed Siraj Ahmed and Others (2010) 2 SCC
654 : [2010] 1 SCR 49 ; Nil Ratan Kundu and Another
v. Abhijit Kundu (2008) 9 SCC 413 : [2008] 11
SCR 1111 ; Kirtikumar Maheshankar Joshi v.
Pradipkumar Karunashanker Joshi (1992) 3 SCC
573 ; Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC
42 : [2008] 16 SCR 396 ; Baby Sarojam v. S.
Vijayakrishnan Nair AIR 1992 Ker 277 ; Abhimanyu
Poria v. Rajbir Singh and Others 2018 SCC Online
Del 6661 : AIR 2018 Del 127 ; A.V. Venkatakrishnaiah
and Another v. S.A. Sathyakumar 1978 SCC Online
Kar 241 : AIR 1978 Kar 220 ; Gohar Begam v. Suggi
@ Nazma Begam and Others AIR 1960 SC 93 : [1960]
SCR 597 ; Smt. Manju Malini Sheshachalam D/o Mr.
R. Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621 ;
Amol Ramesh Pawar v. State of Maharashtra & Others
2014 SCC Online Bom 280 ; Marggarate Maria
Pulparampil Nee Feldman v. Dr. Chacko Pulparampil
and Others AIR 1970 Ker 1 (FB) ; Capt. Dushyant
Somal v. Smt. Sushma Somal & Others (1981) 2 SCC
277 ; Syed Saleemuddin v. Dr. Rukhsana and Others
(2001) 5 SCC 247 ; Nirmaljit Kaur
(2) v. State of Punjab
and Others (2006) 9 SCC 364 : [2005] 5 Suppl.
SCR 514 ; Surya Vadanan v. State of Tamil Nadu and
Others (2015) 5 SCC 450 : [2015] 4 SCR 903 ; Ruchika
Abbi & Anr. v. State (National Capital Territory of Delhi)
and Another (2016) 16 SCC 764; Kanika Goel v. State
of Delhi through Station House Officer and Another
(2018) 9 SCC 578 ; Rajiv Bhatia v. Govt. of NCT of
Delhi and others (1999) 8 SCC 525 : [1999] 2 Suppl.
SCR 280 ; Ruchi Majoo v. Sanjeev Majoo (2011) 6
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SCC 479 : [2011] 7 SCR 674 ; Nithya Anand Raghavan
v. State (NCT of Delhi) (2017) 8 SCC 454 : [2017] 7
SCR 281 ; Lahari Sakhamuri v. Sobhan Kodali 2019
(5) SCALE 97 ; Nil Ratan Kundu v. Abhijit Kundu,
(2008) 9 SCC 413 : [2008] 11 SCR 1111 ; Rosy Jacob
v. Jacob A. Chakramakkal, (1973) 1 SCC 840 : [1973]
3 SCR 918 – referred to.
Case Law Reference
(1981) 3 SCC 92
referred to
Para 6
[2000] 1 SCR 915
referred to
Para 6
AIR 2005 Mad 452
referred to
Para 6
AIR 1981 AP 1
referred to
Para 6
AIR 1993 All 230
referred to
Para 6
AIR 2013 Cal 213
referred to
Para 6
[2010] 1  SCR 49
referred to
Para 6
[2008] 11 SCR 1111 
referred to
Para 6
(1992) 3 SCC 573
referred to
Para 6
[2008] 16 SCR 396
referred to
Para 6
AIR 1992 Ker 277
referred to
Para 6
AIR 2018 Del 127
referred to
Para 6
AIR 1978 Kar 220
referred to
Para 6
[1960] SCR 597
referred to
Para 7
AIR 1970 Ker 1 (FB)
referred to
Para 7
(1981) 2 SCC 277
referred to
Para 7
(2001) 5 SCC 247
referred to
Para 7
[2005] 5 Suppl. SCR 514
referred to
Para 7
[2015] 4  SCR 903
referred to
Para 7
(2016) 16 SCC 764
referred to
Para 7
(2018) 9 SCC 578
referred to
Para 7
TEJASWINI GAUD v. SHEKHAR JAGDISH PRASAD TEWARI
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[1999] 2 Suppl. SCR 280 
referred to
Para 16
[2011] 7 SCR 674
referred to
Para 21
[2017] 7 SCR 281
referred to
Para 22
2019 (5) SCALE 97
referred to
Para 24
[2008] 11 SCR 1111
referred to
Para 26
[1973] 3 SCR 918 
referred to
Para 28
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 838 of 2019.
From the Judgment and Order dated 06.02.2019 of the High Court
of Judicature at Bombay in Criminal Writ Petition No. 5214 of 2018.
Raghenth Basant, Ms. Liz Mathew,  Navneet R., Raghav
Mehrotra, Advs. for the Appellants.
Subhash Jha, Ghanshyam Upadhyay, Manoj K. Mishra, Jyoti
Mishra, Ms. Swati Sinha, Bheem Pratap Singh, Manoj K. Mishra,  Advs.
for the Respondents.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. This appeal arises out of the judgment dated 06.02.2019 passed
by the High Court of Bombay in Crl.W.P. No. 5214 of 2018 in and by
which the High Court held that the first respondent-father of the child
being the surviving parent and in the interest of welfare of the child, the
custody of the child must be handed over to the first respondent-father
and issued writ of habeas corpus directing the appellants to handover
the custody of the minor child to respondent No.1-father of the child.
3. Brief facts of the case are that marriage of respondent No.1
was solemnized with Zelam on 28-05-2006. During the fifth month of
her pregnancy i.e. in May 2017, Zelam was detected with breast cancer.
Respondent No.1 and Zelam were blessed with a girl child named Shikha
on 14-08-2017.  While Zelam was undergoing treatment, child Shikha
was with her father respondent No.1 till November, 2017. Unfortunately,
on 29-11-2017, respondent No. 1 was suddenly hospitalised and he was
diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis.
While he was undergoing treatment, appellant No.1-Tejaswini Gaud –
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one of the two sisters of Zelam and appellant No.4-Dr. Pradeep Gaud
who is the husband of Tejaswini, took Zelam along with Shikha to their
residence at Mahim, Mumbai for continuation of the treatment.  Later,
in June 2018, Zelam was shifted to her paternal home along with Shikha
in Pune i.e. residence of appellant No.3-Samir Pardeshi, brother of
Zelam. In July 2018, they were again shifted to the house of appellant
No.1 in Mumbai. On 17-10-2018, Zelam succumbed to her illness.  Child
Shikha continued to be in the custody of the appellants in Pune at the
residence of appellant No.3 till 17-11-2018. Respondent No.1-father was
denied the custody of child and on 17-11-2018, he gave a complaint to
Dattawadi Police Station, Pune. Thereafter, respondent No.1-father
approached the High Court by filing a writ petition seeking custody of
minor child Shikha. Respondent No.1-father is a post-graduate in
Management and is working as a Principal Consultant with Wipro Limited.
4. The High Court held that respondent No.1-father, the only
surviving parent of the child is entitled to the custody of the child and the
child needs love, care and affection of the father. The High Court took
into account that respondent No.1 was hospitalised for a serious ailment
and in those circumstances, the appellants have looked after the child
and in the interest and welfare of the child, it is just and proper that the
custody of the child is handed over back to the first respondent.
However,
the High Court observed that the efforts put in by the appellants in taking
care of the child has to be recognized and so the High Court granted
appellants No.2 and 3 access to the child.
5. The appellants contend that the writ of habeas corpus cannot
be issued when efficacious alternative remedy is available to respondent
No. 1 under Hindu Minority and Guardianship Act, 1956.   It was submitted
that the child was handed over to the appellants by the ailing mother of
the child who has expressed her wish that they should take care of the
child and therefore, it is not a fit case for issuance of writ of habeas
corpus which is issued only in cases of illegal detention. It is also their
contention that the question of custody of the minor child is to be decided
not on consideration of the legal rights of the parties; but on the sole and
predominant criterion of what would best serve the interest and welfare
of the minor and, as such, the appellants who are taking care of the child
since more than a year, they alone would be entitled to have the custody
of the child in preference to respondent No.1-father of the child.
TEJASWINI GAUD v. SHEKHAR JAGDISH PRASAD TEWARI
[R. BANUMATHI, J.]
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6. Learned counsel appearing for the appellants submitted that
though the first respondent-father is a natural guardian of the minor
child Shikha and has a preferential right to claim the custody of the
minor child, but in matters concerning the custody of a minor child, the
paramount consideration is the welfare of the minor and not the legal
right of a particular party, in this case, the father. It was further submitted
that Section 6 of the Hindu Minority and Guardianship Act, 1956 cannot
supersede the dominant consideration as to what is conducive to the
welfare of the minor child and the welfare of the minor child has to be
the sole consideration. In support of his contention, the learned counsel
for the appellants has placed reliance upon:-
(i)
Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3
SCC 92;
(ii) Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14;
(iii) G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC
Online Mad 472 : AIR 2005 Mad 452;
(iv) L. Chandran v. Mrs. Venkatalakshmi & Another 1980
SCC Online AP 80 : AIR 1981 AP 1;
(v) Ravi Kant Keshri & Another v. Krishna Kumar Gupta
and Others 1992 SCC Online All 548 : AIR 1993 All 230;
(vi) Suriez v. M. Abdul Khader and Others 2017 SCC Online
Kar 4935;
(vii) Murari Lal Sharma and Another v. State of West Bengal
and Others 2013 SCC Online 23045 : AIR 2013 Cal 213;
(viii) R. Suresh Kumar v. K.A. Kavathi and Others MANU
TN/8529/2006;
(ix) Athar Hussain v. Syed
Siraj Ahmed and Others (2010) 2
SCC 654;
(x) Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9
SCC 413;
(xi) Kirtikumar Maheshankar Joshi v. Pradipkumar
Karunashanker Joshi (1992) 3 SCC 573;
(xii) Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42;
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(xiii) Baby Sarojam v. S. Vijayakrishnan Nair AIR 1992 Ker
277;
(xiv) Abhimanyu Poria v. Rajbir Singh and Others 2018 SCC
Online Del 6661 : AIR 2018 Del 127;
(xv) A.V. Venkatakrishnaiah and Another v. S.A.
Sathyakumar 1978 SCC Online Kar 241 : AIR 1978
Kar 220.
7. Per contra, the learned counsel appearing for the first respondent
has submitted that in view of Section 6 of the Hindu Minority and
Guardianship Act, 1956, father has the paramount right to the custody of
the children and he cannot be deprived of the custody of the minor child
unless it is shown that he is unfit to be her guardian.  The learned counsel
submitted that in view of his illness and the illness of the mother Zelam,
mother and child happened to be in Mumbai and Pune and considering
the welfare of the child, she had to be handed over to the first respondent.
It was further submitted that father being a natural guardian as per the
provisions of Section 6 of the Hindu Minority and Guardianship Act,
1956, the appellants have no legal right for the custody of the infant and
the High Court rightly ordered the custody of the child to respondent
No.1. In support of his contention, learned counsel for the respondents
inter alia placed reliance upon number of judgments:-
(i)
Gohar Begam v. Suggi @ Nazma Begam and Others
AIR 1960 SC 93;
(ii)
Smt. Manju Malini Sheshachalam D/o Mr. R.
Sheshachalam v. Vijay Thirugnanam S/o Thivugnanam
& Others 2018 SCC Online Kar 621;
(iii)
Amol Ramesh Pawar v.
State of Maharashtra & Others
2014 SCC Online Bom 280;
(iv)
Marggarate Maria Pulparampil Nee Feldman v. Dr.
Chacko Pulparampil and Others AIR 1970 Ker 1 (FB);
(v)
Thirumalai Kumaran v. Union Territory of Dadra and
Nagar Haveli 2003 (2) Mh.L.J.;
(vi)
Capt. Dushyant Somal v. Smt. Sushma Somal & Others
(1981) 2 SCC 277;
TEJASWINI GAUD v. SHEKHAR JAGDISH PRASAD TEWARI
[R. BANUMATHI, J.]
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(vii) Syed Saleemuddin v. Dr. Rukhsana and Others (2001) 5
SCC 247;
(viii) Nirmaljit Kaur (2) v. State of Punjab and Otherrs (2006)
9 SCC 364;
(ix)
Surya Vadanan v. State of Tamil Nadu and Others (2015)
5 SCC 450;
(x)
Ruchika Abbi & Anr. v. State (National Capital Territory
of Delhi) and Another (2016) 16 SCC 764;
(xi)
Kanika Goel v. State of Delhi through Station House
Officer and Another (2018) 9 SCC 578.
8. We have carefully considered the rival contentions and perused
the impugned judgment and various judgments relied upon by the parties.
9. The question falling for consideration is whether in the writ of
habeas corpus filed by respondent No.1 seeking custody of the minor
child from the appellants, the High Court was right in ordering that the
custody of minor child be handed over to respondent No.1-father.  Further
question falling for consideration is whether handing over of the custody
of the child to respondent No.1-father is not conducive to the interest
and welfare of the minor child.
10. Section 6 of the Hindu Minority and Guardianship Act, 1956
enacts as to who can be said to be a natural guardian.  As per Section 6
of the Act, natural guardian 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) is the father, in the case of a
boy or an unmarried girl and after him, the mother.  Father continues
to
be a natural guardian, unless he has ceased to be a Hindu or renounced
the world.  Section 13 of the Act deals with the welfare of a minor.
Section 13 stipulates that 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.   Section 13(2) stipulates that no person
shall be entitled to the guardianship by virtue of the provisions of the Act
if the court is of opinion that his or her guardianship will not be for the
welfare of the minor.
11. Maintainability of the writ of habeas corpus:-  The learned
counsel for the appellants submitted that the law is well-settled that in
deciding the question of custody of minor, the welfare of the minor is of
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paramount importance and that the custody of the minor child by the
appellants cannot be said to be illegal or improper detention so as to
entertain the habeas corpus which is an extraordinary remedy and the
High Court erred in ordering the custody of the minor child be handed
over to the first respondent-father.  Placing reliance on Veena Kapoor1
and Sarita Sharma2 and few other cases, the learned counsel for the
appellants contended that the welfare of children requires a full and
thorough inquiry and therefore, the High Court should instead of allowing
the habeas corpus petition, should have directed the respondent to initiate
appropriate proceedings in the civil court. The learned counsel further
contended that though the father being a natural guardian has a
preferential right to the custody of the minor child, keeping in view the
welfare of the child and the facts and circumstances of the case, custody
of the child by the appellants cannot be said to be illegal or improper
detention so as to justify invoking extra-ordinary remedy by filing of the
habeas corpus petition.
12. Countering this contention, the learned counsel for respondent
No.1 submitted that in the given facts of the case, the High Court has
the extraordinary power to exercise the jurisdiction under Article 226 of
the Constitution of India and the High Court was right in allowing the
habeas corpus petition. The learned counsel has placed reliance on Gohar
Begum3 and. Manju Malini
Sheshachalam4. Contention of respondent
No.1 is that as per Section 6 of the Hindu Minority and Guardianship
Act, respondent No.1, being the father, is the natural guardian and the
appellants have no authority to retain the custody of the child and the
refusal to hand over the custody amounts to illegal detention of the child
and therefore, the writ of habeas corpus was the proper remedy available
to him to seek redressal.
13. Writ of habeas corpus is a prerogative process for securing
the liberty of the subject by affording an effective means of immediate
release from an illegal or improper detention.  The writ also extends its
influence to restore the custody of a minor to his guardian when
wrongfully deprived of it.  The detention of a minor by a person who is
not entitled to his legal custody is treated as equivalent to illegal detention
1 Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92
2 Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14
3 Gohar Begum v. Suggi @ Nazma Begam and others AIR 1960 SC 93
4 Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam
S/o Thivugnanam & Others 2018 SCC Online Kar 621
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for the purpose of granting writ, directing custody of the minor child.
For restoration of the custody of a minor from a person who according
to the personal law, is not his legal or natural guardian, in appropriate
cases, the writ court has jurisdiction.
14. In Gohar Begum3 where the mother had, under the personal
law, the legal right to the custody of her illegitimate minor child, the writ
was issued. In Gohar Begum3, the Supreme Court dealt with a petition
for habeas corpus for recovery of an illegitimate female child. Gohar
alleged that Kaniz Begum, Gohar’s mother’s sister was allegedly detaining
Gohar’s infant female child illegally. The Supreme Court took note of
the position under the Mohammedan Law that the mother of an illegitimate
female child is entitled to its custody and refusal to restore the custody
of the child to the mother would result in illegal custody of the child.  The
Supreme Court held that Kaniz having no legal right to the custody of
the child and her refusal to make over the child to the mother resulted in
an illegal detention of the child within the meaning of Section 491 Cr.P.C.
of the old Code. The Supreme Court held that the fact that Gohar had a
right under the Guardians and Wards Act is no justification for denying
her right under Section 491 Cr.P.C. The Supreme Court observed that
Gohar Begum, being the natural guardian, is entitled to maintain the writ
petition and held as under:-
“7. On these undisputed facts the position in law is perfectly clear.
Under the Mohammedan law which applies to this case, the
appellant is entitled to the custody of Anjum who is her illegitimate
daughter, no matter who the father of Anjum is. The respondent
has no legal right whatsoever to the custody of the child. Her
refusal to make over the child to the appellant therefore resulted
in an illegal detention of the child within the meaning of Section
491. This position is clearly recognised in the English cases
concerning writs of habeas corpus for the production of infants.
In Queen v. Clarke  (1857) 7 EL & BL 186: 119, ER 1217
Lord Campbell, C.J., said at p. 193:
“But with respect to a child under guardianship for nurture, the
child is supposed to be unlawfully imprisoned when unlawfully
detained from the custody of the guardian; and when delivered
to him, the child is supposed to be set at liberty.”
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The courts in our country have consistently taken the same
view. For this purpose the Indian cases hereinafter cited may
be referred to. The terms of Section 491 would clearly be
applicable to the case and the appellant entitled to the order
she asked.
8. We therefore think that the learned Judges of the High Court
were clearly wrong in their view that the child Anjum was not
being illegally or improperly detained. The learned Judges have
not given any reason in support of their view and we are clear in
our mind that view is unsustainable in law.
……..
10. We further see no reason why the appellant should have been
asked to proceed under the Guardian and Wards Act for recovering
the custody of the child. She had of course the right to do so. But
she had also a clear right to an order for the custody of the child
under Section 491 of the Code. The fact that she had a right
under the Guardians and Wards Act is no justification for denying
her the right under Section 491. That is well established as will
appear from the cases hereinafter cited.” (Underlining added)
15. In Veena Kapoor1, the issue of custody of child was between
the natural guardians who were not living together. Veena, the mother of
the child, filed the habeas corpus petition seeking custody of the child
from her husband alleging that her husband was having illegal custody
of the one and a half year old child.  The Supreme Court directed the
District Judge concerned to take down evidence,
adduced by the parties,
and send a report to the Supreme Court on the question whether
considering the interest of the minor child, its mother should be given its
custody.
16. In Rajiv Bhatia5, the habeas corpus petition was filed by
Priyanka, mother of the girl, alleging that her daughter was in illegal
custody of Rajiv, her husband’s elder brother.  Rajiv relied on an adoption
deed.  Priyanka took the plea that it was a fraudulent document.  The
Supreme Court held that the High Court was not entitled to examine the
legality of the deed of adoption and then come to the conclusion one
way or the other with regard to the custody of the child.
5 Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525
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17. In Manju Malini4 where the mother filed a habeas corpus
petition seeking custody of her minor child Tanishka from her sister and
brother-in-law who refused to hand over the child to the mother, the
Karnataka High Court held as under:-
“24. The moment respondents 1 and 2 refused to handover the
custody of minor Tanishka to the petitioner the natural and legal
guardian, the continuation of her custody with them becomes illegal
detention. Such intentional act on the part of respondent Nos.1
and 2 even amounts to the offence of kidnapping punishable under
S.361 of IPC. Therefore there is no merit in the contention that
the writ petition is not maintainable and respondent Nos.1 and 2
are in legal custody of baby Tanishka.”
18. 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.
19. 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 of 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
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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.
20. 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 1½ 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.
21. Custody of the child – removed from foreign countries
and brought to India:-  In a number of judgments, the Supreme Court
considered the conduct of a summary or elaborate enquiry on the question
of custody by the court in the country to which the child has been
removed.  In number of decisions, the Supreme Court dealt with habeas
corpus petition filed either before it under Article 32 of the Constitution
of India or the correctness of the order passed by the High Court in
exercise of jurisdiction under Article 226 of
the Constitution of India on
the question of custody of the child who had been removed from the
foreign countries and brought to India and the question of repatriation of
the minor children to the country from where he/she may have been
removed by a parent or other person.  In number of cases, the Supreme
Court has taken the view that the High Court may invoke the extraordinary
jurisdiction to determine the validity of the detention. However, the Court
has taken view that the order of the foreign court must yield to the
welfare of the child. After referring to various judgments, in Ruchi
Majoo6, it was held as under:-
“58. Proceedings in the nature of habeas corpus are summary in
nature, where the legality of the detention of the alleged detenu is
examined on the basis of affidavits placed by the parties. Even
so, nothing prevents the High Court from embarking upon a detailed
enquiry in cases where the welfare of a minor is in question, which
6 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479
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is the paramount consideration for the Court while exercising its
parens patriae jurisdiction. A High Court may, therefore, invoke
its extraordinary jurisdiction to determine the validity of the
detention, in cases that fall within its jurisdiction and may also
issue orders as to custody of the minor depending upon how the
Court views the rival claims, if any, to such custody.
59. The Court may also direct repatriation of the minor child to
the country from where he/she may have been removed by a
parent or other person; as was directed by this Court in Ravi
Chandran (2010) 1 SCC 174 and Shilpa Aggarwal (2010) 1
SCC 591 cases or refuse to do so as was the position in Sarita
Sharma case (2000) 3 SCC 14. What is important is that so long
as the alleged detenu is within the jurisdiction of the High Court
no question of its competence to pass appropriate orders arises.
The writ court’s jurisdiction to make appropriate orders regarding
custody arises no sooner it is found that the alleged detenu is
within its territorial jurisdiction.”
22. After referring to various judgments and considering the
principles for issuance of writ of habeas corpus concerning the minor
child brought to India in violation of the order of the foreign court, in
Nithya Anand7, it was held as under:-
“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
7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454
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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.”
23. In Sarita Sharma2, the tussle over the custody of two minor
children was between their separated mother and father. The Family
Court of USA while passing the decree of divorce gave custody rights
to the father. When the mother flew to India with the children, the father
approached the High Court by filing a habeas corpus petition. The High
Court directed the mother to handover the custody to the father. The
Supreme Court in appeal observed that the High Court should instead of
allowing the habeas corpus petition should have directed the parties to
initiate appropriate proceedings wherein a thorough enquiry into the
interest of children could be made.
24. In the recent decision in Lahari Sakhamuri8, this court
referred to all the judgments regarding the custody of the minor children
when the parents are non-residents (NRI). We have referred to the
above judgments relating to custody of the child removed from foreign
country and brought to India for the sake of completion and to point out
that there is a significant difference in so far the children removed from
foreign countries and brought into India.
25. Welfare of the minor child is the paramount
consideration:- The court while deciding the child custody cases is not
bound by the mere legal right of the
parent or guardian.  Though the
provisions of the special statutes govern the rights of the parents or
guardians, but the welfare of the minor is the supreme consideration in
cases concerning custody of the minor child. The paramount consideration
for the court ought to be child interest and welfare of the child.
26. After referring to number of judgments and observing that
while dealing with child custody cases, the paramount consideration should
be the welfare of the child and due weight should be given to child’s
ordinary comfort, contentment, health, education, intellectual development
and favourable surroundings, in Nil Ratan Kundu9, it was held as under:-
“49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148
the High Court observed that it is true that the father is a natural
guardian of a minor child and therefore has a preferential right to
8 Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97
9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
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claim the custody of his son, but in matters concerning the custody
of a minor child, the paramount consideration is the welfare of the
minor and not the legal right of a particular party. Section 6 of the
1956 Act cannot supersede the dominant consideration as to what
is conducive to the welfare of the minor child. It was also observed
that keeping in mind the welfare of the child as the sole
consideration, it would be proper to find out the wishes of the
child as to with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003
Mad 315 the Court held that custody cases cannot be decided on
documents, oral evidence or precedents without reference to
“human touch”. The human touch is the primary one for the welfare
of the minor since the other materials may be created either by
the parties themselves or on the advice of counsel to suit their
convenience.
51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 the Court
observed:
“13. … the Court while deciding child custody cases in its
inherent and general jurisdiction is not bound by the mere legal
right of the parent or guardian. Though the provisions of the
special statutes which govern the rights of the parents or
guardians may be taken into consideration, there is nothing
which can stand in the way of the Court exercising its parens
patriae jurisdiction arising in such cases giving due weight to
the circumstances such as a child’s
ordinary comfort,
contentment, intellectual, moral and physical development, his
health, education and general maintenance and the favourable
surroundings. These cases have to be decided ultimately on
the Court’s view of the best interests of the child whose welfare
requires that he be in custody of one parent or the other.”
52. In our judgment, the law relating to custody of a child is fairly
well settled and it is this: in deciding a difficult and complex question
as to the custody of a minor, a court of law should keep in mind
the relevant statutes and the rights flowing therefrom. But such
cases cannot be decided solely by interpreting legal provisions. It
is a human problem and is required to be solved with human touch.
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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.”
27. Reliance was placed upon Gaurav Nagpal10, where the
Supreme Court held as under:-
“32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed:
(Ch p. 148)
The dominant matter for the consideration of the court is
the welfare of the child. But the welfare of the child is not to
be measured by money only nor merely physical comfort. The
word ‘welfare’ must be taken in its widest sense. The moral
or religious welfare of the child must be considered as well as
its physical well-being. Nor can the tie of affection be
disregarded.” (emphasis supplied)
………
50. When the
court is confronted with conflicting demands made
by the parents, each time it has to justify the demands. The court
has not only to look at the issue on legalistic basis, in such matters
human angles are relevant for deciding those issues. The court
then does not give emphasis on what the parties say, it has to
exercise a jurisdiction which is aimed at the welfare of the minor.
As observed recently in Mausami Moitra Ganguli case (2008)
7 SCC 673, the court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual development
10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42
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and favourable surroundings but over and above physical comforts,
the moral and ethical values have also to be noted. They are equal
if not more important than the others.
51. The word “welfare” used in Section 13 of the Act has to be
construed literally and must be taken in its widest sense. The
moral and ethical welfare of the child must also weigh with the
court as well as its physical well-being. Though the provisions of
the special statutes which govern the rights of the parents or
guardians may be taken into consideration, there is nothing which
can stand in the way of the court exercising its parens patriae
jurisdiction arising in such cases.
28. Contending that however legitimate the claims of the parties
are, they are subject to the interest and welfare of the child, in Rosy
Jacob11, this Court has observed that:-
 “7. .… the principle on which the court should decide the fitness
of the guardian mainly depends on two factors: (i) the father’s
fitness or otherwise to be the guardian, and (ii) the interests of
the minors.”
……..
“15. .... The children are not mere chattels : nor are they mere
play-things for their parents. Absolute right of parents over the
destinies and the lives of their children has, in the modern changed
social conditions, yielded to the considerations of their welfare as
human beings so that they may grow up in a normal balanced
manner to be useful members of the society and the guardian
court in case of a dispute between the mother and the father, is
expected to strike a just and proper balance between the
requirements of welfare of the minor children and the rights of
their respective parents over them. The approach of the learned
Single Judge, in our view, was correct and we agree with him.
The Letters Patent Bench on appeal seems to us to have erred in
reversing him on grounds which we are unable to appreciate.”
29. The learned counsel for the appellants has placed reliance
upon G. Eva Mary Elezabath12 where the custody of the minor child
11 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
12 G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472
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aged one month who had been abandoned by father in church premises
immediately on death of his wife was in question. The custody of the
child was accordingly handed over to the petitioner thereon who took
care of the child for two and half years by the Pastor of the Church. The
father snatched the child after two and a half years from the custody of
the petitioner. The father of the child who has abandoned the child though
a natural guardian therefore was declined the custody.
30. In Kirtikumar Maheshankar Joshi13, the father of the
children was facing charge under Section 498-A IPC and the children
expressed their willingness to remain with their maternal uncle who was
looking after them very well and the children expressed their desire not
to go with their father. The Supreme Court found the children intelligent
enough to understand their well-being and in the circumstances of the
case, handed over the custody to the maternal uncle instead of their
father.
31. In the case at hand, the father is the only natural guardian
alive and has neither abandoned nor neglected the child. Only due to the
peculiar circumstances of the case, the child was taken care of by the
appellants. Therefore, the cases cited by the appellants are distinguishable
on facts and cannot be applied to deny the custody of the child to the
father.
32. The child Shikha went into the custody of the appellants in
strange and unfortunate situation.  Appellants No.1 and 2 are the sisters
of
deceased Zelam. Appellant No.4 is the husband of appellant No.1.
All three of them reside at Mahim, Mumbai. Appellant No.3 is the
married brother of Zelam who resides in Pune. During the fifth month of
her pregnancy, Zelam was diagnosed with stage 3/4 breast cancer. Zelam
gave birth to child Shikha on 14-08-2017. On 29-11-2017, respondent
No.1 collapsed with convulsions due to illness. Upon his collapse, he
was rushed to hospital where he was diagnosed with Tuberculosis
Meningitis and Pulmonary Tuberculosis. He was kept on ventilator for
nearly eight days, during which period, appellants took care of Zelam
and the child. The first respondent had to undergo treatment in different
hospitals for a prolonged period. From 29-11-2017 to June 2018, Zelam
and Shikha stayed at the residence of appellant’s in Mumbai. During this
13 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3
SCC 573
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period, Zelam underwent masectomy surgery. Zelam later relapsed into
cancer and decided to get treatment from a doctor in Pune and therefore,
shifted to appellant No.3’s house at Pune with Shikha and Zelam passed
away on 17-10-2018. After recovering from his illness, the respondent
visited Pune to seek custody of the child. But when they refused to hand
over the custody, the father was constrained to file the writ petition
seeking custody of the child. The child Shikha thus went to the custody
of the appellants in unavoidable conditions. Only the circumstances
involving his health prevented the father from taking care of the child.
Under Section 6 of the Act, the father is the natural guardian and he is
entitled to the custody of the child and the appellants have no legal right
to the custody of the child. In determining the question as to who should
be given custody of a minor child, the paramount consideration is the
‘welfare of the child’ and not rights of the parents under a statute for the
time being in force.
33. As observed in Rosy Jacob11 earlier, the father’s fitness has
to be considered, determined and weighed predominantly in terms of the
welfare of his minor children in the context of all the relevant
circumstances. The welfare of the child shall include various factors
like ethical upbringing, economic well-being of the guardian, child’s
ordinary comfort, contentment, health, education etc. The child
Shikha
lost her mother when she was just fourteen months and is now being
deprived from the love of her father for no valid reason. As pointed out
by the High Court, the father is a highly educated person and is working
in a reputed position.  His economic condition is stable.
34. 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.
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35. The appellants submit that handing over of the child to the
first respondent would adversely affect her and that the custody can be
handed over after a few years.  The child is only 1½ years old and the
child was with the father for about four months after her birth.  If no
custody is granted to the first respondent, the court would be depriving
both the child and the father of each other’s love and affection to which
they are entitled.  As the child is in tender age i.e. 1½ years, her choice
cannot be ascertained at this stage. With the passage of time, she might
develop more bonding with the appellants and after some time, she may
be reluctant to go to her father in which case, the first respondent might
be completely deprived of her child’s love and affection. Keeping in
view the welfare of the child and the right of the father to have her
custody and after consideration of all the facts and circumstances of the
case, we find that the High Court was right in holding that the welfare of
the child will be best served by handing over the custody of the child to
the first respondent.
36. Taking away the child from the custody of the appellants and
handing over the custody of the child to the first respondent might cause
some problem initially; but, in our view, that will be neutralized with the
passage of time.  However, till the child is settled down in the atmosphere
of the first respondent-father’s house, the appellants No.2 and 3 shall
have access
to the child initially for a period of three months for the
entire day i.e. 08.00 AM to 06.00 PM at the residence of the first
respondent.  The first respondent shall ensure the comfort of appellants
No.2 and 3 during such time of their stay in his house. After three months,
the appellants No.2 and 3 shall visit the child at the first respondent’s
house from 10.00 AM to 04.00 PM on Saturdays and Sundays.  After
the child completes four years, the appellants No.2 and 3 are permitted
to take the child on every Saturday and Sunday from the residence of
the father from 11.00 AM to 05.00 PM and shall hand over the custody
of the child back to the first respondent-father before 05.00 PM. For
any further modification of the visitation rights, either parties are at liberty
to approach the High Court.
37. The impugned judgment of the High Court dated 06.02.2019
in Crl.W.P. No. 5214 of 2018 is affirmed subject to the above directions
and observations. The appellants shall hand over the custody of the child
to the first respondent-father on 10.05.2019 at 10.00 AM at the residence
TEJASWINI GAUD v. SHEKHAR JAGDISH PRASAD TEWARI
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of the first respondent.  Keeping in view the interest of the child, both
parties shall co-operate with each other in complying with the directions
of the Court.  This appeal is accordingly disposed of.
Nidhi Jain
Appeal disposed of.