A. GENESIS OF PRESENT WRIT OF HABEAS CORPUS

1. Corpus, a seven years old boy, has approached this Court through his mother, Smt. Ashi Verma, alleging that Corpus was kidnapped by her husband, Gaurav Verma (Respondent-3) on 02.06.2022 taking advantage of good gesture shown by mother of Corpus to allow him to meet with Corpus. Respondents-4 and 5 are father and mother of Respondent-3, who are supporting her husband and they have misbehaved with her when she alongwith Police personnel went to their place to recover the Corpus. Hence, to recover the Corpus, present Habeas Corpus Petition is filed.

B. COURT'S INTERACTION WITH CORPUS

2. The Corpus is presently staying with his father who appeared before this Court on 16.09.2022 when this Court has interacted with him and brief of the same is mentioned in the order dated 16.09.2022, when after hearing counsel for parties judgment was reserved. For reference the relevant part of said order is mentioned hereinafter:

C. INTER-PARENTAL CONFLICTS; ITS' EFFECT ON CHILDREN

3. "Inter-Parental Conflict and Children's Psychological Development" are now also termed as "Child Affected by Relationship Distress". It remained an important subject for research scholars and various research papers are available on research related website which have considered "loyalty conflict", "parental alienation" etc. Few of them alongwith their conclusion/observation are referred hereinafter:

4. Sri Sarvesh, learned counsel for petitioner and Sri Mahesh Narain Singh, Advocate for Respondents-3 to 5, have vehemently presented the case of their parties. There were submissions and counter submissions as well as allegations and counter allegations. The conflict between parties are like head on confrontation.

5. Learned counsel for petitioner submitted that father and mother of Corpus got married on 08.02.2010 and two sons were born out of their wedlock. Elder son is Corpus, who is seven years old and younger one is presently residing with mother. It is the case of mother that she was tortured for many years and even an attempt to murder was also made when she was thrown away from a running train. In this regard she has lodged an FIR under Sections 498A , 323 , 504 , 307 IPC. The Corpus was abducted and tortured. He was forced to work at hotel of his father. The family members of husband have assaulted her when she went alongwith Police personnel to recover the Corpus. The mother has also lodged FIR against her husband and family members for attempt to murder, however, it is alleged that Police personnel, under force and influence of opposite parties, have lodged FIR only under Sections 323 , 504 , 506 IPC, despite she has suffered injuries which were mentioned in medical examination report. She has also filed a criminal case under Section 125 Cr.P.C. for maintenance. Learned counsel further submitted that mother of Corpus was forced to sign papers of compromise, on the basis of which police submitted final report and case filed under Section 125 Cr.P.C. was also withdrawn. In support of allegations mother has made statement under Section 164 Cr.P.C., however, under the garb of compromise final report was submitted. Learned counsel has also placed reliance on certain photographs that father-in-law of petitioner had not only assaulted her but also touched her inappropriately and that the Corpus was very happy with the company of his mother, however, father has abducted him and, therefore, Corpus shall be returned back to her mother. It is also contended that the Corpus has been withdrawn from a very good school, i.e., St. Mery's Convent School and now he has been admitted in a sub-standard school.

6. Sri Mahesh Narain Singh, learned counsel for Respondents-3 to 5, has vehemently opposed the above submissions and placed counter allegation that Corpus was tortured and he was not happy with his mother, therefore, on his own sweet will he accompanied his father and presently residing happily. Compromise was entered with open eyes by parties and the mother tried to execute the same by Police personnel which was not permissible. There are video clippings to show that she was hale and hearty when she was recovered at Gwalior Railway Station. He denied the allegation of attempt to murder of the mother of Corpus. There are video clippings to show that mother and her parents were aggressor and tried to take the Corpus forcefully against his will. The Corpus is in a legal company of his father, therefore, this habeas corpus petition is not maintainable and further the mother has not lodged any FIR that her son was kidnapped.

E. LAW ON WRIT OF HABEAS CORPUS

7. "Habeas Corpus" is a Latin word which literary means "to have the body of". The High Court under Article 226 of the Constitution can issue a writ of habeas corpus to a person who has detained another person, to produce the later body before it. The scope of writ of habeas corpus of a minor from the custody of mother as well as from father has been discussed in various judgments passed by this Court as well as Supreme Court and some of them are mentioned hereinafter:

"8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question ''what is the wish/desire of the child' is different and distinct from the question ''what would be in the best interest of the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ''what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, ''what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits." (Emphasis supplied) II. Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42:

52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor." (Emphasis supplied) III. Nil Ratan Kundu vs. Abhijit Kundu , (2008) 9 SCC 413 (relied by counsel for petitioner):

( Emphasis supplied) IV. Anjali Kapoor vs. Rajiv Baijal , (2009) 7 SCC 322 (relied by counsel for Respondents-3 to 5):

( Emphasis supplied) VI. Syed Saleemuddin vs. Dr. Rukhsana , (2001) 5 SCC 247 (relied by counsel for Respondents-3 to 5):

10. This Court in the case of Gohar Begam v. Suggi Alias Nazma Begam and others (1960(1) SCR 597) dealt with a petition for writ of Habeas Corpus for recovery of a illegitimate female infant of an unmarried Sunni Muslim mother, took note of the position under the Mohammedan Law that the mother of an illegitimate female infant is entitled to its custody and the refusal to restore such a child to the custody of its mother would result in an illegal detention of the child within the meaning of Section 491 of the Criminal Procedure Code. This Court held that the dispute as to the paternity of the child is irrelevant for the purpose of the application and the Supreme Court will interfere with the discretionary powers of the High Court if the discretion was not judicially exercised. This Court further held that in issuing writs of Habeas Corpus the Court have power in the case of an infant to direct its custody to be placed with a certain person.

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." (Emphasis supplied) VII. Vahin Saxena (Minor Corpus) and another vs. State of U.P. and others (Habeas Corpus Writ Petition No. 467 of 2021), decided on 27.08.2021 (relied by counsel for Respondents-3 to 5):

"12. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant become entitled to the writ as of right.

13. In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is.

14. Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus, is in the nature of extraordinary remedy, and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

15. The role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child. In such cases the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor.

16. In a given case, while dealing with a petition for issuance of a writ of habeas corpus concerning a minor child, directions may be issued for return of the child or the Court may decline to change the custody of the child, keeping in view all the attending facts and circumstances and taking into view the totality of the facts and circumstances of the case brought before the Court; the welfare of the child being the paramount consideration." (Emphasis supplied) VIII. Shaurya Gautam (Minor) and another vs. State of U.P. and others (Habeas Corpus Writ Petition No. 140 of 2020), decided on 10.11.2020 (relied by counsel for petitioner):

IX. Gyanmati Kushwaha and another vs. State of U.P. and others (Habeas Corpus Writ Petition No. 1217 of 2019), decided on 26.02.2021 (relied by counsel for petitioner):

X. Neelam vs. Man Singh and another , 2015(2) RCR (Civil) 291 (relied by counsel for Respondents-3 to 5):

F. ANALYSIS

8. Undisputedly, there are counter allegations by mother and father including serious allegation of attempt to murder, giving torture to a minor and even of administering intoxicating substance to Corpus. There are FIRs also wherein investigation is either concluded or at the stage of protest petition. The relations between father and mother appears to be strain. Presently the younger child is with mother and Corpus, who is elder child, is with father. Mother, on the one hand, disputing compromise entered before Family Court, being signed under force, but on the other hand, placed heavy reliance on Clause 5 of compromise which provides that mother shall have overall right on both child and in fact by way of this habeas corpus petition she wants to implement or execute the said clause in her favour as her case is that Corpus was kidnapped by his father under the garb of visiting right, which is a clear violation of the conditions of agreement. She has even tried to execute the same by help of Police personnel, however, it was not materialized. Even otherwise, Police authorities have no business or right to execute a compromise executed in a Court of law in absence of any specific direction by Court concerned. Both mother and father are natural guardian of their children, therefore, to hold that the Corpus is in illegal custody of his father would not be a correct approach. Both families are residing nearby. Counter allegation of torturing the Corpus cannot be decided in a habeas corpus petition only on the basis of allegations and averments made in respective affidavits. So far as allegation of attempt to murder by in-laws and husband, as alleged by mother, is concerned, the same is subject matter of investigation, therefore, at this stage to take a view by this Court will adversely affect the investigation or proceedings thereafter.

9. As referred above , a writ of habeas corpus is a prerogative writ and extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.

10. In Mohd. Ikram Hussain vs State Of U.P. & Others , 1964(5) SCR 86 it is held that, "writ of habeas corpus is a festinum remedium and the power can only be exercised in a clear case".

11. As referred above , the Court has interacted with Corpus and found that the boy is happy in the company of his father and grandparents and he wants to live with his parents, i.e., father and mother both. The Corpus appears to be in healthy condition and does not appear to be under any force or being tutored. Only because the father has admitted him in another school which allegedly to be a school of sub-standard, the Court cannot come to the conclusion that welfare of Corpus is not properly looked after by father.

12. There are contrary allegation on behalf of father also that Corpus was beaten by his mother and grandparents as and when he desires to visit his father. In absence of any evidence the Court cannot pass any final judgment to the allegations and further there are photographs of both sides that Corpus is happy alongwith his father and also with his mother, therefore, to take a judgement at this stage will only result in digging a deep valley between mother and father of Corpus.

13. As mentioned above, this Court has to take a prima facie view about the welfare of Corpus, a minor boy, which is the supreme consideration in cases concerning to custody of minor child and paramount consideration of the Court ought to be child's interest and welfare. There is no dispute that father is also a natural guardian of a minor child, as such, the Corpus is not in illegal detention or custody with his father. There is no order of any Court which has provided custody of Corpus to his mother. So far as execution of agreement is concerned, parties are at liberty to take available legal recourse. Parties are also at liberty to take legal recourse provided under Guardians and Wards Act, 1890 .

14. As referred above , the Court has interacted with Corpus and does not find that his welfare is not properly looked after by his father. The Corpus is admitted in a school, namely, D.K. International School, Etawah and the Corpus has correctly answered few questions of general knowledge. Therefore, it cannot be said that presently father of Corpus is not looking after his son properly. It is also not a case of mother that her husband and family members are not financially sound. The Corpus was wearing good formal clothes and was looking hygienic.

G. CONCLUSION

15. The outcome of above analysis on facts as well as on law is that, father of Corpus is one of the natural guardian. The outcome of interaction with Corpus is that he is happy alongwith his father and has a keen interest in study. He has no complaints with his father and wishes that his parents and his younger brother stay together. The allegations and counter allegations are the part of scrutiny in police investigation. The parties have liberty to ascertain their rights of custody of their children in accordance with the provisions of Guardians and Wards Act, 1890 after exchange of pleadings and evidence. Therefore, the prayer of petitioner cannot be allowed.

H. DIRECTIONS I. The Corpus shall remain with his father till a contrary direction, if any, is passed by any Court of Law.

II. Father shall not obstruct or object the visiting rights of mother of Corpus and he shall permit his mother to meet the Corpus on any day with prior notice as well as on each Sunday in day time at his home and father will also have similar liberty to meet his younger son at his mother's home.

III. Mother and father of Corpus are also directed not to create any ruckus during their visit at respective houses to meet the child.

IV. The Investigating Officer is directed to organize a mediation between parties as well as, if necessary, organize a counselling session for parents also.

I. CONCLUDING REMARKS

16. As observed above, in a case of inter-parental conflict, a child may be affected by relationship distress and may develop loyalty conflict and parental alienation, therefore, parents are advised to settle their differences to fulfill the wish of Corpus which he expressed before this Court that he wants to live alongwith his younger brother father and mother as a family and wants to hold their hands to go his home alongwith his younger brother to live peacefully and happily.

17. The prayers made in this habeas corpus petition are rejected and it is disposed of with above referred directions.

Order Date :-22.09.2022 AK