custody of a child = Mother is accused of murdering his father and her husband. She has a paramour with whom she is now residing. There is no pleading that mother is alone or that she will abode separately from her paramour. If custody of the child is handed over to her then he will be an unwanted intruder in their lives. Her paramour will have no compassion for him nor will he relish his company. Under such circumstances it is remote to conclude that mother will be able to foster the child in a healthy and congenial atmosphere. Not only the lover and beloved are important in this matter but the society around them will also have an impact on the upbringing of the child. It is very doubtful that detenue will have friendship with the adolescents of his age. As observed above quality of home atmosphere and surrounding enviorenment are important aspects to be taken note of. For litigating accused of a murder charge, it will be difficult to rear up the child in an atmosphere required for the said purpose.

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HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Habeas Corpus Writ Petition No. 9721 of 2011

Master Shobhit …………………………………………..Petitioner
Versus

State of U.P. and others …………………………….Respondents

Hon. Vinod Prasad, J

Manju Sonkar, a widow mother, natural and legal guardian of detenue petitioner Master Shobhit, has approached this court for issuance of a writ of Habeas Corpus, ensuring production of detenue’s corpus before this court by respondent no. 3 Baij Nath and then hand over his (detenu’s) custody to her.
Before entering into various vex, complex, delicate and intricate issues, involved in this Habeas Corpus, a thumb nail resume of back ground facts, as are discernible from the pleadings made by both the sides in their affidavits, are inked below.
Manju Sonkar, the mother who has filed this Habeas Corpus Petition was married with Balbir Sonkar on 16.4.2000, according to Hindu customs and rites. From their wedlock, detenue petitioner Master Shobhit was born on 14.6.2004 and as on date, he is about 6 years of age. On the intervening night between 31.10.2007/1.11.2007 at 1.00 a.m. Balbir Sonkar was murdered and in that respect an FIR, annexure no.1, was lodged by his brother-in-law, Azam Sonkar, against two unknown murderers following early morning at 4.30 a.m. at P.S. Kalyanpur, district Kanpur Dehat, registered as crime no. 1102 of 2007, u/s 302 IPC. Investigating Officer commencing investigation and unearthing the perpetrator culprits concluded that it was petitioner mother Manju Sonkar who with the help of her paramour Noor Moahammad s/o Shah Mohammand had annihilated her husband deceased with saw as the crime weapon by chopping his neck off. Resolving commission of crime and surfacing guilty accused, that the I.O. charge sheeted both the murders, petitioner mother and her paramour, on 16.12.2007, vide annexure no.CA-1 to the counter affidavit. Accused were summoned by the committal court and finding their case prosecutable by Session’s Court committed it for trial before Session’s Court, where it was registered as S.T. No. 125 of 2008, State versus Noor Mohammad and another, which trial is now in the offing before Special Judge, E.C. Act., Kanpur Nagar.
In it’s endeavour to establish accused guilt, uptill now, prosecution has examined two fact witnesses P.W.1 Harish Chandra and P.W.2 Baij Nath, who both besides deposing relationships and other facts, which are not relevant and germane to be mentioned for deciding this Habeas Corpus and hence are eschewed from being penned down, regarding actual incident, testified before Session’s Court in the trial, that on the date and time of the incident when they woke up after hearing shrieks of the deceased, they had witnessed that petitioner mother Manju had pressed her deceased husband by his chest and her paramour Noor Mohammad was chopping his neck off with a saw and when PW1 and PW2 attempted to raise hue and cry they were threatened and silenced. Motive for the murder was deposed to be extra marital physical relationship between the two murderers.
Reverting back to this Habeas Corpus, according to mother’s pleadings, on 11.12.2007, detenue Shobhit was illegally and forcefully snatched away by his grandfather Baij Nath respondent no. 3, who is now illegally detaining him against natural and legal rights vested in the mother and, inspite of her best efforts, she was unable to receive back detenue’s custody albeit she was legal and natural guardian and was entitled for the same. Mother had also approached to the higher police officials and other authorities as well for restoring detenue’s custody to her but she failed in her all attempts. Since mother was apprehensive about detenu’s life and safety that she has taken recourse to this Habeas Corpus petition.
Notice was issued to respondent no. 3 by this court on 18.2.2011 and he was directed to produce corpus of Shobhit before this court on 4.4.2011. Respondent no. 3 Baij Nath s/o Mangali appeared and has filed a short counter affidavit to which a rejoinder affidavit has also been filed by the petitioner. Respondent no. 3 has also filed a supplementary counter affidavit which is also on record.
According to the pleadings and plea of respondent no.3 deceased Balbir Sonkar was his son who was residing with his family in village Rawatpur in house no. 116 / 372 district Kanpur Nagar. False FIR in respect of his death was lodged by his brother-in-law Ajay Sonkar, brother of petitioner mother Manju Sonkar. Since mother is in infatuated extra marital relationship and there were threats and danger to the life and safety of the detenue that he and his wife Smt. Girja, who are none-else other than his grand parents had brought him on 1/11/2007, and since then they are fostering detenue with due care, love and affection and he is being looked after well. It was further pleaded that danger on the life of the detenue looms large from the paramour and mother and therefore there is no illegal detention as paramount interest of the detenue lies with them.
In reply to the counter affidavit mother Manju Sonkar, in her rejoinder affidavit has transcripted various statements of P.W.1 and P.W.2 recorded during murder trial to pointing out various contradictions to show that she is innocent.
In the backdrop of aforesaid facts and pleadings that I have heard Sri Shashank Tripathi, learned counsel in support of this Habeas Corpus Writ Petition, Sri Baij Nath learned counsel for respondent No.3 and learned AGA representing other respondents.
Petitioner’s counsel submitted that mother is the natural and legal guardian of the detenu Shobhit, who is her son and, therefore, she is entitled for his custody. Shobhit is six years of age and, therefore, for better development of his moral, physical and psychological qualities, his fostering by the mother is of utmost importance. Shobhit cannot be separated from his mother as fondling and affection by the mother has no substitute. Refuting murder charge against the mother, it was argued that the same is false and still to be established. Merely because mother is accused of a murder is no reason to separate her from her son as relationship between husband and wife has altogether different bonding than relationship between mother and son contended learned counsel. Only on the score that she has been allegated to have been a privy to the murder of her husband, she cannot be denied custody of her son. Petitioner’s counsel further submitted that the welfare betterment of the child lies with the mother and, therefore, his custody be handed over to her.
Strenuously refuting petitioner’s contentions both respondents counsel retorted that mother is a murderer, accused of her husband and detenue’s father death, and hence cannot be handed over his custody. She is entangled with a paramour of another caste who will have no compassion and affection with the detenue who will be his eye sore. Past activities of the mother and present surrounding circumstances are relevant considerations in determining welfare of the child which is the sole and paramount consideration in a Habeas Corpus petition and those factors has to be summated dispassionately. Nothing matters more than the child’s welfare and in vetting that an impartial and pragmatic view has to be adopted. It is to be judged from solitary angle of welfare of the child to determine as to whether it lies with the mother or with the grand parents who are fostering him with all the care, love and affection since last three years and are caring for his needs. Mother has approached this court after an inordinate delay of three years without any plausible excuse for the same and hence her bona fides is not genuine. Fostering of a child require a healthy and caring atmosphere pervaded with love, affection and tolerance, which a mother accused of a murder charge because of her lustrous psyche can never bestow. Both the counsel contended that giving custody of the child necessarily to the mother is not an inflexible rule as welfare of the child is the sole and paramount consideration and hence if, a mother forfeits her such fostering rights because of her criminal activities, then she can be denied custody of the child may be her son. They further harangued that in the instant petition it is not only the mother who is involved but it is her paramour as well who is directly and substantially involved in the matter and danger looming large on the detenue from him is not difficult to perceive and there is an imminent possibility of harm being caused to him. Psychology of a lustrous paramour is more dangerous than love of grand parents and hence for his safety and well being, custody of the child should not be transferred. It was further argued that nowhere in the Habeas Corpus Petition, it has been stated by the mother that she will foster the child along with Noor Mohammad without any harm being inflicted on him. A wife, who had no compassion for her husband because of whom she had attained motherhood can never be trusted for the safety of an infant boy. Both the counsels argued that giving custody of the child to such a mother will generate two fold dangers- one from the mother and another from her paramour Noor Mohammad. They submitted that it is not unknown that paramour after getting some relief, will annihilate the child, who will be his eyes sore. Concludingly, it was submitted that the child cannot be given in the custody of the mother as his life will be in peril and mother, who is lustrously blind cannot foster him with all the care and affection required by an untainted mind of an infant for his healthy and humane fostering. On the contrary, the child is being taken care of with all the fondlings, care and caution by respondent no.3 and since he is being reared up well custody of the detenue be not altered. Since the sole and paramount consideration is the welfare of the child and not legal entitlement hence, Habeas Corpus Petition sans merits and be dismissed.
I have pondered over rival contentions and have summated facts and circumstances of the petition. Before dwelling upon rival submissions, a quick searchlight glimpse on some of the guiding precedents and previous judicial pronouncements indicate that opinion of various courts have been crystallised in holding that in matters of custody of minor or the child, singularly most significant paramount consideration, above all other factors, is the welfare of the child. No party as an un-perishable and infallible claim can have child’s custody, if the benefit of the child does not lie with it. Decision on child custody is a question which, besides being legal, is more social and psychological which requires a humane and in depth analysis of various facets of life and society attour facts and circumstances of the lis and hence has to be addressed in joint consideration with all those factors and facets. It will be of use to refer some of the pointer decisions reflecting few but significant guidelines on this aspect.
World over, right of a child and his welfare has been recognized now there cannot be two point of views and divergent opinions that in matters of custody of a child his welfare and best interest is sole and paramount consideration. The Courts all over the world are one on the said aspect of the matter. ‘Welfare’ of a child in such matters is not an abstract term but has to be determined on the facts of each case and peculiar nature involved in the lis. Corpus Juris Secundum: volume 4, chapter 5, deals with child custody and his welfare. It has been provided in Clause 34 and 36 thereof as under:-
“34. In determining the custody of the child borne out of wedlock, the primary considerations are the best interests and welfare of the child.
35……………………………………………………………………………..
36.In determining whether there should be a change of custody of a child born out of wedlock, there must be a showing that there has been a substantial change in the circumstances of the child or custodian, and that the welfare and best interests of the child require modification.”

Interest of a child has to be determined on the peculiar facts and circumstances of each case without resorting to unnecessary presumption in favour of any party. This has been so observed in the case of Bazemore v. Davis; App.,394A, 2d 1377. On of facts of present Habeas Corpus a referable decision is found in N.J.- Matter of Adoption of B.,378 A.2d 90 wherein it has been laid down that –
“where seven-year-old child born out of wedlock whose mother had died had lived with maternal grandparents all of his life except for three-month period and, although he had been visited by his natural father, maternal grandparents stood as psychological parents to him, and where father lived in another community with his wife, whom child hardly knew, and child’s relationship with father was a casual one, custody of child would be awarded to maternal grandmother even though she and maternal grandfather had been recently divorced.”

There has been no divergence of views that if mother is a drunkard, or she is a licentious lady, having extra marital relationship, or that she is unable to look after required welfare of the child or that she is morally unfit, she cannot be given custody of a child. One of the exemplar decision in this respect is Doe v. Attorney W., 410 So.2d 1312.
In Halsbury’s Laws of England,4th Edition(Vol.24) para 511, it has been mentioned as under:-
“Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor’s welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father’s claim in respect of that custody or upbringing is superior to that of the mother, or the mother’s claim is superior to that of the father.”

In Howarth versus NorthCott :17 ALR 758 it has been observed as under:-
“In Habeas Corpus proceedings to determine child custody, the jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity”.

In the same decision, Howarth(supra) discussing further it was held as under:-
“The employment of the forms of Habeas Corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one. Including the parents, are allowed to militate”.

In Athar Hussain v. Syed Siraj Ahmed and Ors.: AIR 2010 SUPREME COURT 1417 it has been held by our apex court as under :-
“32. Section 12 of the Act empowers courts to “make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.” In matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of the parties contesting for custody. Therefore, while deciding the question of interim custody, we must be guided by the welfare of the children since Section 12 empowers the Court to make any order as it deems proper.
33. We are mindful of the fact that, as far as the matter of guardianship is concerned, the prima facie case lies in favour of the father as under Section 19 of the GWC Act, unless the father is not fit to be a guardian, the Court has no jurisdiction to appoint another guardian. It is also true that the respondents, despite the voluminous allegations levelled against the appellant have not been able to prove that he is not fit to take care of the minor children, nor has the Family Court or the High Court found him so. However, the question of custody is different from the question of guardianship. Father can continue to be the natural guardian of the children; however, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his/her interest better. In the case of Rosy Jacob v. Jacob A. Chakramakkal, keeping in mind the distinction between right to be appointed as a Guardian and the right to claim custody of the minor child, this Court held so in the following oft-quoted words:
“Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them.”
34. In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors., [AIR 1932 All 215], which was a case concerning the right to custody under Mohammaden Law, the Court held:
“A question has been raised before us whether the right under the Mahomedan law of the female relation of a minor girl under the age of puberty to the custody of the person of the girl is identical with the guardianship of the person of the minor or whether it is something different and distinct. The right to the custody of such a minor vested in her female relations, is absolute and is subject to several conditions including the absence of residing at a distance from the father’s place of residence and want of taking proper care of the child. It is also clear that the supervision of the child by the father continues in spite of the fact that she is under the care of her female relation, as the burden of providing maintenance for the child rests exclusively on the father.”
In Gaurav Nagpal v. Sumedha Nagpal: AIR 2009 SUPREME COURT 557 it has been held by the Supreme court as under:-
“35. The principles in relation to the custody of a minor child are well settled. 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.
………………………………………………………..
42. 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 Mousami Moitra Ganguli’s case (supra), the Court has to due weightage to the child’s ordinary contentment, health, education, intellectual development 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.
43.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.”
It is significant to register here that welfare does not mean fiscal and economic status or physical comforts only but it has a much wider connotation which, as I perceive, includes every thing which is required for best upbringing of a child in a healthy, lovable atmosphere of care and affection. This obviously includes basic bare minimum necessities of life and one of the most significant aspect is quality of home environment and need for stability in child’s life. It is apt to quote Lindley, L.J. in Mac Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, wherein expounding sense and ambit of the word “Welfare” it was observed:-
“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.”
In Rosy Jacob v. Jacob A. Chakramakkal:AIR 1973 SC 2090 Supreme Court has been pleased to hold:-
“…..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. This Court considering the welfare of the child also stated that, the children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children have, 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.”
In Elizabeth Dinshaw v. Arvand M. Dinshaw: AIR 1987 SUPREME COURT 3 it has been held by the apex court as under:-
“8. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our Chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent Court in that country. We are also satisfied that the petitioner who is the mother is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper up bringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child’s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child to some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present.”
(emphasis laid)
Another referable decision is Muthuswami chettiar and another versus K.M. Chinna Muthuswami Moopanar: AIR 1935 Madras 195 where in speaking for the bench Hon’ble Beasley CJ has observed as under ;-
” It was also held that both according to Hindu law and English law a father is the natural guardian of his children during their minority and has therefore a paramount right to the custody of his children of which he can not be deprived unless it is clearly shown that he is unfit to be their guardian. Each case must depend upon it’s own circumstances , and however paramount right of a father may be , that right in our opinion is liable to be defeated where it is shown that it is better in the interest of the minor and for his welfare that it should remain where it is.
If a minor has for many years from a tender age lived with grand parents or other near relatives and has been well cared for and during that time the minor’s father has shown a lack of interest in the minor , theses are in our view , circumstances of very great importance. They bear both upon question of the interest and welfare of the minor and on the bonafide of the petitioner.”
From the references of above judicial decisions, the precipitated residue is that in matters of custody of minor and/or child the sole and paramount consideration is welfare of the minor and welfare is not restrict in it’s scope only to physical welfare or monetary well being but imbibes in itself and includes all factors required for caring and fostering of the child in a congenial suitable and healthy atmosphere. It includes all those factors which are included in the concept of life and liberty. It is only from such a point of view that the case of the petitioner is to be considered.
Turning towards present petition it is clear that detenue boy since his last three years is residing with respondents who are none else than his grand parents . Mother is accused of murdering his father and her husband. She has a paramour with whom she is now residing. There is no pleading that mother is alone or that she will abode separately from her paramour. If custody of the child is handed over to her then he will be an unwanted intruder in their lives. Her paramour will have no compassion for him nor will he relish his company. Under such circumstances it is remote to conclude that mother will be able to foster the child in a healthy and congenial atmosphere. Not only the lover and beloved are important in this matter but the society around them will also have an impact on the upbringing of the child. It is very doubtful that detenue will have friendship with the adolescents of his age. As observed above quality of home atmosphere and surrounding enviorenment are important aspects to be taken note of. For litigating accused of a murder charge, it will be difficult to rear up the child in an atmosphere required for the said purpose. At this point I add a note that When the boy was brought before the court it was noticeable that he was attached with the grandparents and was not willing to come down from the lap of his grandfather. He even did not recognise his mother and made no gesture to go to her. Moreover pleadings in the petition is woefully deficient to indicate that mother had any source of her own livelihood to foster the child. It is nowhere averred that she is capable of fostering the child in a healthy and crime free atmosphere. For an infant it is his surroundings which is of utmost importance as it guides, and determines his psychology which has lasting impact on the unpolluted mind of the child. As noted above the sole and prime concern in such type of proceedings is welfare of the child and only from that angle entire conspectus of case has to be decided. No doubt parents are natural and legal guardian of the child but if, welfare of the child does not lie in their company, the court cannot abjure it’s legal and moral responsibility of acting as guardian of the child and to restore his/ her custody at a place and with the person where his / her welfare lies best. Child custody being a delicate and intricate issue requires humane and compassionate treatment. Change of custody of a child some time may yield detrimental results than what was anticipated and desired. In this respect regard can be had to apex court decision in Vishnu v. Jaya: AIR 2010 SUPREME COURT 2092 wherein it has been held as under:-
“6. In the aforesaid facts and circumstances, we are of the view that if the children are forcibly taken away from their father and handed over to the mother, it will only traumatize them and it will not do any good to anybody.”
In Gaurav Nagpal v. Sumedha Nagpal: AIR 2009 SUPREME COURT 557: it has been observed by the apex court as under:-
“42. 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 Mousami Moitra Ganguli’s case (supra), the Court has to due weightage to the child’s ordinary contentment, health, education, intellectual development 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.
43. 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.”
On an over all analysis of the entire facts and circumstances of this Habeas Corpus Petition, the irresistible conclusion which emerges is that welfare of the child lies with respondent no.3 and not with the mother petitioner and therefore I am not inclined to change his custody. However at the same time mother be permitted visitation rights to meet her son.
In view of above this Habeas Corpus Petition is dismissed but mother will have the right to meet her son during day time, between sun rise and sun set in the house of respondent no. 3, in the presence of respondent no.3 or his wife as and when she likes. There shall be no order as to cost.
Dt.9.9.2011
Rk

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