Shamim Ahmed, J
1. This case is listed before this Court being regular Bench, as per constitution/roster of this High Court.
2. C.M. Application No. 1A/14/2022 and C.M. Application No. 25/2022 have been moved by the respondent No.3 (father of the detenue) on 07.03.2022 and 02.12.2022 respectively for modification of the order dated 14.12.2021 and 06.01.2022 and C.M. Application No.15/2022 has been moved by the petitioner's next friend (mother of the detenue) on 07./08.03.2022 for modification of the order dated 06.01.2022 passed by co-ordinate Bench of this Court in the present habeas corpus writ petition.
3. Heard Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Sushil Kumar Singh, learned counsel for the petitioners, Shri Prashant Chandra, learned Senior Advocate assisted by Ms. Meha Rashmi, learned counsel for opposite parties 3 to 6 and Shri Diwakar Singh and Shri Hari Shanker Bajpai, learned AGA-I for the opposite parties 1 and 2 and perused the record.
4. The petitioners had filed this Habeas Corpus petition,bearing No. 9307 of 2020 with the following reliefs:
"(i) Issue a writ, order or direction in the nature of Habeas Corpus directing the opposite parties to produce the petitioner No.1/ Detenue and handover his custody to the petitioner No.2.
(ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case."
5. The brief facts of the case are that opposite party no.3-Dr. Dinesh Agarwal and petitioner no.2 have serious differences which lead to cleavage in their matrimonial life, resulting their non judicial separation from matrimonial home situated at Katras Bazar Rajbari Road, Katras, Dhanbad, Jharkhand. The petition discloses that petitioner No.2 and opposite party No.3 married on 30.6.2017. Soon after marriage Dr. Dinesh Agarwal, opposite party no.3 and his family members started demanding Rs.40 lacs in dowry from the petitioner no.2 as opposite party no.3 came to know that she has a P.P.F. account worth more than Rs.40 lacs. Apart from the said demand of dowry, the opposite party no.3 and his family members namely petitioner's father-in-law, Sri Jeewan Lal Agrawal and others started torturing her mentally and physically in connection with the said demand. Due to the harassment, petitioner no.1 was compulsed to live in Lucknow most of the time where the petitioner no.1, detenue was born on 3.7.2018. Petitioner no.1 and 2 were brought by the opposite party no.3 to Dhanbad after birth of detenue but due to constant harassment petitioner no.2 forced to come back to Lucknow with petitioner no.1 by the end of February, 2020 and had been staying in Lucknow ever since.
6. On 6.6.2020, the opposite party no.3 suddenly came to the house of the petitioner no.2 and pretended that he wants to reconcile with the petitioner no.2. He stayed there, but on the next morning at about 9 O'clock, the opposite party no.3 pretended to take the child out from the house. He has taken away the detenue, petitioner no.1 assuring the petitioner no.2 to come back after having a short drive with him. Opposite party no.3 even left his luggage at the house of petitioner no.2 to assure and keep her into impression that he will return with the petitioner no.1 but actually he ran away and kidnapped the petitioner no.1 detenue with the help of his driver. After that petitioner no.2 through their common friend came to know that the opposite party no.3 have reached at Katras, District- Dhanbad, State of Jharkhand taking away the detenue with him illegally from the custody of petitioner no.2. Petitioner no.2 when contacted the opposite party no.3, he told that petitioner no.2 should give access of her P.P.F. account to him if she wants petitioner no.1, detenue back.
7. Since the incident dated 7.6.2020 of abduction of petitioner no.1, the child is by his father (the opposite party no.3), he is in custody of father in Katras, District Dhanbad in the State of Jharkhand. This gave rise to the inter parental custody dispute pertaining to their minor child. For the purpose of brevity and convenience hereinafter in foregoing paras wherever contextually needed the opposite party no.3, the petitioner no.2 and the petitioner no.1 shall be addressed also as ''father' ''mother' and ''the child/detenue' respectively.
8. At the time of incident the child detenue (petitioner no.1) was an infant of about 1 year and 9 months' age. The mother has stated that the detenue child is dependent on mother's milk and needs such care and protection which father cannot provide. She is highly educated lady, qualified in M.B.A. Finance and Human Resources, had worked as Assistant Professor in B.B.D. University at Lucknow but quit her job to take care of her child. She has been taking care of her child financially or otherwise since his birth and petitioner no.1, the detenue has never been parted from the petitioner no.2. She has a constant source of income being generated from her savings and residing with her parents in their own house at Lucknow. In support of her claim as to the financial competence, the petitioner no.2 has filed Income Tax Return of year 2019-20 issued by the Income Tax Department as Annexure-2, wherein the gross income is shown Rs.5,16,328/-. In the night of 6.6.2020, the opposite party no.3 landed at the house of the petitioner no.2 and virtually snatched away and kidnapped the child in the morning of 7.6.2020 pretending to come back after a short drive with the child.
9. The instant petition was filed on 15.6.2020 and was first taken up on 18.6.2020. On 13.7.2020, a co-ordinate Bench of this Court had made following observations, which is reproduced hereunder:-
"Learned counsel for the petitioner submits that detenue aged about two years has been illegally snatched from the custody of petitioner no.2 and herculean effort was made by the concerned police to trace out the detenue but since the opposite party nos.3 and 4 are residents of Jharkhand State, the concerned local police is not cooperating with the U.P. Police in absence of any specific direction of this Court.
Learned AGA submits that effort was made to search out the detenue but the detenue could not be traced out.
In view of the above, issue notice to opposite party nos.3 to 6 through opposite party no. 2 i.e. Station House Officer, Police Station Aliganj, Lucknow to produce the detenue Master Devansh on 05.08.2020."
10. Again on 5.8.2020, a co-ordinate Bench of this Court had made following observations, the relevant portion is extracted and reproduced hereunder:-
"Sri R.P. Shukla, learned counsel for respondent nos. 3 to 6, submits that in pursuance to the order of this Court dated 13.07.2020, the child Master Devansh Agarwal could not be produced today as he is not well. A copy of the medical prescription dated 03.08.2020 has been produced today in Court. Sri Shukla prays for and is granted a week's time for bringing on record the said medical prescription and he would also indicate the medical condition of the child. The medical condition to be indicated on behalf of respondent nos. 3 to 6 would also indicate the medical certificate from a doctor as to whether the child is fit to travel from Jharkhand to Lucknow and in case the certificate does not indicate so then the child shall be produced before this Court on 14.08.2020."
11. On 20.1.2021, a co-ordinate Bench of this court had passed following order:-
"1. Heard Sri Siddhartha Sinha, learned counsel for the petitioners as well as learned A.G.A. for the State while Sri Vivek Sonkar, Advocate has put in appearance on behalf of opposite party No.s 3 to 6.
2. An application for recall of order dated 11.1.2021 along with vakalatnama has been filed in the registry by Sri Vivek Sonkar on 19.11.2020. Office has reported that it has not been able to trace any such application for recall of order dated 11.1.2021. In absence of the application for recall, I proceed with the matter.
3. It has been submitted by Sri Siddhartha Sinha that this Court by means of order dated 17.3.2020 had directed opposite party No.s 3 and 6 to produce the detenue Master Devansh Agrawal on 5.8.2020. A perusal of the order sheet dated 5.8.2020 indicates that on 5.8.2020 the detenue could not be produced and, therefore, by means of the order dated 5.8.2020 this Court directed for production of the detenue on 14.8.2020. It has been submitted that there was no sitting of this Court on the said date due to COVID 19 lock-down, therefore, this Court by means of order dated 27.8.2020 directed the detenue to be produced on 8.9.2020, on which date also there was no Court sitting due to the pandemic. It has been submitted that in the meanwhile opposite party No.2 in order to avoid producing the detenue moved an application for recall of the order dated 27.8.2020 which was rejected on 14.10.2020. Subsequently, on 11.1.2021 this Court directed for production of the detenue today i.e. 20.1.2021.
4. When the matter has been taken up Sri Vivek Sonkar, the new counsel appearing for opposite parties No.3 to 6, could not show any cogent reason for non-appearance of the detenue as directed by this Court vide its order dated 20.1.2021 today. He, however, submits that opposite party No.3 is in Jharkhand and they will appear on any date fixed by this Court. It has also been informed that as per direction of this Court a sum of Rs.30,000/- has already been deposited in this Court to show the bonafide and also to enable opposite party No.3 along with the detenue to appear before this Court.
5. In view of above, I see no reason as to why opposite party No.3 is not appearing before this Court along with the detenue. As, such, list this case on 28.1.2021 on which date opposite party No.3 shall appear before this Court along with the detenue Master Devansh Agarwal.
6. It is made clear that if this order is not complied with, the Court will have no option except to adopt coercive methods for their appearance."
12. That during pendency of the instant habeas corpus the opposite party No.3 filed a Special Leave to Appeal (Crl.) No.586 of 2021 against the order dated 20.1.2021. Hon'ble Supreme Court referred the matter to Supreme Court's Mediation Center and dismissed the aforesaid Special Leave to Appeal vide order dated 25.1.2021. The order dated 25.01.2021 is quoted herein below:
"The High Court directed the petitioner No.1 to be present in Court on 20.1.2021 along with the child in a writ of Habeas Corpus filed by the respondent No.3. We are informed by the learned counsel for the petitioners that the matter is now listed for hearing on 28.01.2021.
Learned counsel for the petitioners brought to our notice an order passed by this court on 11.01.2021 in Transfer Petition (c) Nos.1371-1372 of 2020 filed by Respondent No.3 by which the matrimonial dispute has been referred to the Supreme court Mediation Centre.
We are not inclined to interfere with the order impugned in the special leave petition. However, the petitioner is at liberty to bring to the notice of the High Court that the entire dispute is referred to the Supreme Court Mediation Centre and the transfer petition was directed to be listed after eight weeks.
The special leave petition is dismissed.
Pending application (s), if any, shall stand disposed of."
13. That during pendency of the mediation proceedings at Hon'ble Supreme Court Mediation Centre, the case was re-listed before a co-ordinate Bench of this Court on 28.01.2021 and a co-ordinate Bench of this Court had passed the following order:
"1. Today when the matter has been taken up Sri Deepak Agrawal, Advocate has put in appearance on behalf of respondent no. 3. He has placed an order of Hon'ble Supreme Court dated 25.01.2021, passed in SLP (Civil) No. 586 of 2021. According to which it seems that one transfer application has been preferred before the Apex Court where the present matrimonial dispute has been referred to the Mediation Center of the Apex Court. The aforesaid SLP was filed against the earlier order of this Court dated 20.01.2021, where this Court had directed respondent no. 3 to appear before this Court alongwith detenue Master Devansh Agarwal.
2. Perused the order of Apex Court dated 25.01.2021.
3. Today, attention of this Court has been drawn towards the order of the Apex Court dated 11.01.2021, passed in Transfer Petition (Civil) No. 1371 of 2020.
4. The conduct of the counsel appearing for opposite party no. 3 is highly regrettable inasmuch as, the earlier orders passed by the Hon'ble Apex Court were never brought to the notice of this Court, which lead this Court to pass the order dated 20.01.2021.
5. In the light of the apology made by learned counsel appearing for respondent no. 3, this Court is not passing any further order in this regard.
6. Looking into the order of the Apex Court dated 11.01.2021, as well as 25.01.2021, list this case after two month's.
7. Learned counsel for the parties shall inform this Court, on the next date of listing, about the outcome of the mediation proceedings at Supreme Court."
14. Thereafter in pursuance of order dated 25.1.2021 passed in Special Leave to Appeal (Crl.) No.586 of 2021, the parties appear before the Mediation Center of Hon'ble Supreme Court and after several rounds of single and joint session of mediation and after considering options available with them parties could not arrive at any amicable solution to resolve their dispute, as such, the mediation failed. The true copy of the Mediation Report is made annexure no.2 to the supplementary affidavit, which is reproduced hereunder:-
"Comprehensive mediation sessions were held with parties on 01.02.21, 02.01.21 & 04.02.21 through virtual mode and on 08.02.21 physical mediation at Supreme Court Mediation Centre.
However, after several rounds of single and joint session of mediation and after considering options available with them parties could not arrive at any amicable solution to resolve their dispute."
15. Thereafter, the instant habeas corpus petition was listed on 14.12.2021 and a co-ordinate Bench of this Court had disposed of the instant petition and the operative portion of the observations/directions is reproduced hereunder:
" Here, in the present case the detention of the minor child by the father is held illegal and without authority of law. Further, it has been observed by this court during pendency of petition several orders of the court with regard to the production of child and even to facilitate the meeting of the mother with the child were flouted over by the father. This is enough to show that father not only has taken away the child illegally from the custody of mother but also he had not left any opportunity for the child to see his mother or the mother to see her child. This conduct of the father if taken with the facts of differences between the husband and wife i.e., the mother of the child by reason of which they are separately residing and the fact that the F.I.R. under Sections 498-A, 336, 506 of I.P.C. and Section 3/4 of Dowry Prohibition Act is lodged against father with regard to cruelty in connection with the demand of dowry and abduction of the child, there is reason to believe that father in furtherance of his malice towards mother will also make brain wash of the child towards his mother that would not be in the interest and welfare of the child. The mother is competent enough to take care, maintenance and upbringing of the child with the love and affection. She deserves to have custody of the child removing the same from the father.
In view of the above circumstances, the writ of habeas corpus is required to be issued to opposite party no.3 to produce the child before this Court on 20.12.2021 for handing over the same to the petitioner no.2 (mother), however, he will be at liberty to get finally decided his rights of exclusive custody as guardian by the family court or court of Guardians and Wards Act which are competent to declare the same in the welfare of the child on the basis of evidences produced before the said courts.
Opposite party no.3 is directed to produce the child in the court at 2:00 p.m. on 20.12.2021 for handing over the custody of the child to the petitioner no.2 (mother). The order regarding the visitation rights of opposite party no.3 will be passed after the child is produced in the court.
The opposite party no.2, S.H.O. Police Station Aliganj, Lucknow is directed to ensure the production of child alongwith opposite party no.3 in the court on the date fixed for implementation of the order. The expenses for the journey with companion if any deposited in the court pursuant to the order dated 20.1.2021 still remains unexhausted which shall be paid to the opposite party no.3 by the Senior Registrar of the court after handing over the child by the opposite party no.3 to petitioner no.2 (mother).
The instant writ petition of habeas corpus is disposed of in the above said terms.
Office is directed to list for implementation of the order on 20.12.2021.
The Senior Registrar of the court is directed to promptly serve the copy of the judgment to the opposite party no.3 in person in addition to the service in ordinary process through e-mail also and to the Superintendent of Police, Dhanbad for facilitating the implementation of order through his official Fax and e-mail.
The opposite party no.2, S.H.O., Police Station Aliganj, Lucknow shall get copy of the order promptly and constitute a police team to recover the child with opposite party no.3, so as to ensure the production of the child before the court on the date of implementation."
16. Thereafter the case was again listed on 20.12.2021, 21.12.2022 and again on 05.01.2022 and a co-ordinate Bench of this Court passed the following order:
"This case is placed today before the Court from notice after 02:00 P.M.
The case is called out.
Learned counsel for the petitioner Sri Ram Chandra Singh, Advocate and learned A.G.A. for the State, Sri Anurag Singh Chauhan, Advocate are present in the Court.
Vide order dated 21.12.2021, the private respondent no.3 i.e. Dr. Dinesh Agarwal on the assurance of his learned counsel Ms. Rose Mary Raju, Advocate was directed to appear with child, namely, Master Devansh Agarwal before the Court at 02:00 P.M. and in case of his default, the opposite party no.2 i.e. Station House Officer, Police Station Aliganj, District Lucknow was also directed to comply with the order in terms of order dated 14.12.2021 by ensuring his production alongwith the child "Master Devansh Agarwal". Learned A.G.A. was also directed to ensure compliance of the order.
Today, the petitioner-mother of the child "Master Devansh Agarwal", Smt. Deepti Goyal is personally present before the Court, however, none is present on behalf of the opposite party no.3, namely, Dr. Dinesh Agarwal.
The Station House Officer, Police Station Aliganj, District Lucknow who was directed to ensure the production of child alongwith Dr. Dinesh Agarwal in the Court though present in the Court but the non-compliance is explained by him that a team constituted for the compliance of the order is still stayed at the place of abode of opposite party no.3 i.e. Dr. Dinesh Agarwal at Katras Bazar, Rajbari Road, Dhanbad, District Dhanbad, State of Jharkhand, which informed the Station House Officer that Dr. Dinesh Agarwal left the place for Delhi alongwith the child, he is still in Delhi and is awaited at his home district.
Learned A.G.A. informs on the basis of conversation made with the Station House Officer, Police Station Aliganj, District Lucknow that the case is placed before the Court today through notice but the Station House Officer, Police Station Aliganj, District Lucknow is present in the Court to explain the situation. He informed in accordance with the information sent by his team in District Dhanbad, State of Jharkhand that the private opposite party no.3 i.e. Dr. Dinesh Agarwal has to come tomorrow from Delhi to Lucknow through air as his Special Leave Petition against the order stands dismissed today by order of the Court.
Be so as it may.
Office of the Registrar (Listing) is directed to list the matter before the Court tomorrow i.e. on 06.01.2022.
It is further taken into notice that the office of the Registrar (Listing) was in apparent error whatsoever reason may be therefor in not listing the case in the cause list in accordance with the order dated 21.12.2021 on the date fixed i.e. 05.01.2022 for personal appearance at 02:00 P.M. Such error should not be repeated further and the officer/official who committed the default in such non listing be called for their explanation, the conclusion be communicated to this Court by the Registrar (Listing)."
17. Thereafter, in compliance of order dated 05.01.2022, the case was again listed on 06.01.2022 and a co-ordinate Bench of this Court passed the following order:
"Called on.
Today on 06.01.2022, Sub Inspector Sri Durga Prasad Yadav, PNO 930440020 and lady Constable Ms. Antima Singh PNO 112304472, Police Station, District Lucknow appeared before the Court to produce the child Master Devansh Agarwal with his father Dr. Dinesh Agarwal in Court in compliance of judgment and order dated 14.12.2021 and subsequent order dated 21.12.2021.
In accordance with the order dated 05.01.2022 passed in Special Leave to Appeal (Crl.) No. 10080 of 2021 (Dr. Dinesh Agarwal Vs. State of U.P. and others) by Hon'ble Apex Court with direction to hand over the child to mother at 2:00 p.m., the child is handed over today to the mother Smt. Deepti Goel.
The father Dr. Dinesh Agarwal, private opposite party no. 3 and mother, next friend of the child Master Devansh Agarwal, Smt. Deepti Goel both have signed the ordersheet with regard to delivery of child to the mother and receiving by the mother, the petitioner's next friend.
In the order dated 14.12.2021, order as to visitation right to father was kept contingent upon the handing over the child by opposite party no.3, Dr. Dinesh Agarwal to the petitioner's next friend Smt. Deepti Goel, therefore this is the occasion to pass the order with regard to right of visitation of the child to the father.
(i) On conversation with opposite party no. 3, Dr. Dinesh Agarwal, father of the child Master Devansh Agarwal, as per his request, on every weekend (Sunday) shall visit the child at the residence of petitioner's next friend Smt. Deepti Goel i.e. B-47, Sector-H, Aliganj, District Lucknow where the petitioner's next friend the mother Smt. Deepti Goel use to reside with the child.
(ii) In case, for any reason if opposite party no. 3 Dr. Dinesh Agarwal fails to visit the child on Sunday, after informing the next immediate day after Sunday within one or two days to the petitioner's next friend Smt. Deepti Goel, may visit the child on that altered day.
(iii) Reciprocally, the petitioner's next friend, mother of the child Master Devansh shall ensure to remain present at the House No. B-47, Sector-H, Aliganj, District Lucknow for the purpose of complying with the direction as to the visitation right given to the father or on any other date as stipulated herein-above. The mother shall not leave or change the house of her abode with child without seeking prior permission of the Court and informing to the father of the child, opposite party no. 3. She will not leave with child Master Devansh the jurisdiction of the Court without prior permission as directed herein-above.
(iv) The father, opposite party no. 3 will have the right to visit the child Master Devansh within 10 a.m. to 5 p.m. in day time in the presence of petitioner's mother or any other family members of her parental house, in their supervision and control, however they are not permitted to make any obstruction in such visiting of the child by the father.
(v) The father of Master Devansh, opposite party no. 3, will have a right to contact with the child Master Devansh his son, telephonically either audio or video mode. For this purpose the mother will facilitate such telephonic connection with father of the child. It may be appropriate for both of them (father and mother of the child Master Devansh) to fix a particular time for the purpose of telephonic conversation with child.
(vi) The father if wants to give any gift in love and affection with child, brings anything for his use or do something necessary for well being of child, the mother, petitioner's next friend or any of the family members of her parental house will not make any forbiddance or obstruction in such acts. However, father shall keep in mind that such things would be safe in use and occupationed by the child.
(vii) Since the child is of so young age that still is under scheduled vaccination prescribed by the health department, the record of vaccination and as to the further vaccination shall be handed over by the father Dr. Dinesh Agarwal to the mother Smt. Deepti Goel as soon as possible within 15 days from the date of order so that further vaccination, if any, may be given timely without failure on her part.
(viii) It would be the duty of the father, whenever he visits the child to maintain the safe distance, put mask and keep the hand sanitized and to follow the protocol of the Covid-19 guidelines.
(ix) It is expected that the father till now has been twice vaccinated. If it is not so, he will ensure to be vaccinated twice as soon as possible. Mother shall also keep herself vaccinated twice.
(x) In case, the father is twice vaccinated with Covid-19 Vaccine, the rider of the safe distance and putting mask need not to be followed during visitation.
Looking into the pendency of matrimonial petition in competent court of law, the request of opposite party no. 3 with regard to overnight stay during visit to the child in the home of the petitioner's next friend, the mother of the child, is not permitted. However, this would be subject to the result of possible mediation held between them in such legal proceeding."
18. The respondent No.3, father of the detenue moved C.M. Application No. 1A/14/2022 and C.M. Application No. 25/2022 with a prayer to recall the order dated 14.12.2021 and 06.01.2022 and further prayed that the custody of the minor petitioner Devansh be ordered to be handed over to his own father and the orders dated 14.12.2021 and 06.01.2022 be recalled/reviewed or modified.
In the aforesaid application the respondent No.3 has submitted that vide order dated 06.01.2022 the minor child has been handed over to the mother and the visitation rights were granted to the father, which allowed the father to meet the minor child every Sunday from 10.00 a.m. to 5 p.m. at the residence of the mother.
In the aforesaid application the respondent No.3 has submitted in terms of the order dated 06.01.2022, the respondent No.3 reached the petitioner's house at the time appointed by this Hon'ble Court ie., 10:00 am. Though the minor child was present, he was surrounded by his mother, mother's sister and the grandmother of the child, leaving no opportunity for the child to interact with the respondent No.3. The atmosphere was far from normal and the minor child was in no position to feel free to interact with the father. The respondent No.3 requested the minor petitioner's mother, her sister and her mother to kindly allow the respondent No.3 to interact with the child without the child being intimidated as was being done but his requests were not acceded to. In order to be able to converse and interact with his minor son, as specifically permitted by this Hon'ble Court, the respondent No.3 had taken a tablet (electronic device) with him, through which he could connect with his son and both converse with him as well as see him on the video, which would not only allow the strong bond which subsists between the minor child and the father is not eroded and the minor child has the advantage of shared parenting which has since been acknowledged as the best mode of parenting in the world.
The respondent No.3 has further submitted that every effort is being made by the mother to wash the mind of the child against the respondent No.3 and by not allowing the minor child to meet the respondent No.3, the petitioner No.2 is endeavouring to detach the child from the respondent No.3 even at the cost of wilful violation of the orders passed by this Hon'ble Court and against the welfare principle.
The petitioner No.2 has wilfully neglected to comply with the orders passed by this Hon'ble Court as a repercussion whereof serious detriment has been caused in the up bring of the minor child Devansh and his welfare is in jeopardy.
Learned counsel for the respondent No.3 has further submitted that respondent No.3 is a practising spine surgeon in Dhanbad, with his own clinic and established practice. He travels to Lucknow on weekends taking leave from his practice, covering a distance of over 800 kms via multiple modes including overnight train and road journey to meet his son every Sunday. His visitation from 10.00 a.m. to 5 p.m. every Sunday which currently takes place at the residence of the petitioner No.2, is always frustated by the petitioner No.2 and her family members and order dated 06.01.2022 passed by this Hon'ble Court is not being complied with by them. The minor child is being deprived of the love an affections of his own father, and the father is not able to interact with his son meaningfully. He further submitted that to be close to his son and facilitate a meaningful interation, the father has taken on rent premises barely 500 meter from the house of his wife (petitioner), situated at C-137, Sector J, Aliganj, Lucknow. The premises is a two bedroom park facing house, furnished, safe and comfortable with ample space for the child to be with the father and spend quality time with him. During this period if the mother of child wants to come and stay with the child and the father (respondent No.3), the father would have absolutely no objection. The child be permitted to interact with his cousins and grandparents. The father may take the child for outings and bring him out of his shell by taking him around in the neighbourhood park, science centre, restaurants, mall sports activities etc.
Learned counsel for the respondent No.3 has further submitted that a good Hotel may also be serve as the neutral venue for visitation from 10 a.m. to 5 p.m. every Sunday. Hotel Clarks Awadh is situated about 3 km from house of the mother. From Monday to Friday the father may be allowed to contact his son on video calls on two days at a time to be fixed by this Hon'ble Court. The calls should be meaningful and last atleast 10 to 15 minutes and not disconnected after 30 second or so. The telephone number may be indicated in the order and must be kept on at all time.
19. The petitioner's next friend, mother of the detenue moved C.M. Application No. 15/2022 for modification of the order dated 06.01.2022 with the following relief (s):
(a) In Clause-I in the order dated 06.01.2022 of this Hon'ble Court the visitation right of the Father (opposite party No.3) on every weekend (Sunday) be reduced to one Sunday every month and if for any unforeseen reasons the Sunday (One) is not feasible then alternate day i.e. next day but the visitation be of opposite party No.3 with the minor petitioner be reduced to once in a month.
(b) In Clause-IV in the order dated 06.01.2022 of this Hon'ble Court be not construed to be from 10.00 a.m. to 5.00 p.m. continuously i.e. 7 hours meeting for opposite party No.3, it should be 1 hour or 1.5 hours or 2 hours i.e. an ideal meeting.
(c) In furtherance to the direction of this Court in its order dated 06.01.2022 a further rider be made on opposite party No.3 not to give/show the video clip to minor petitioner and no Junk Food/Drinks like Frooti, Cold Drink, Ice Cream be restricted.
(d) In furtherance to the direction of this Court in its order dated 06.01.2022 a further rider be imposed on Opposite Party No.3 while visiting to minor petitioner, he should keep Laptop, Mobile to put outside the house in the safe custody of guards of the house.
(e) In furtherance to the direction of this Court in its order dated 06.01.2022 a further rider/restrictions be imposed on Opposite Party No.3 while visiting to minor petitioner, he should keep Laptop, Mobile to put outside the house in the safe custody of guards of the house."
20. Learned counsel for the petitioners submits that the respondent No.3 on meetings days continuously shown the video games and feeding Junk Fook like Cakes, Chips, Frooti, Toffee, Lollipop and James all the time during meeting, resulting which twice the minor petitioner/detenue suffered from diarrhoea after eating lollipops. He further submits that the visitation on every Sunday by the respondent No.3 has made the distraction of the minor petitioner/detenue and had adversely affected mental and physical growth and development of minor petitioner/detenue. The behaviour of the respondent No.3 during meeting is hugging and clutching the minor petitioner for 3-4 hours continuously by showing video game and does not allow the minor petitioner/detenue to sleep and keep him awake and after over of meeting the minor petitioner/detenue feels adversely and looks abstracted for days to come.
21. Learned counsel for the petitioners further submits that the visitation rights/meeting of respondent No.3 with the minor petitioner/detenue is not fruitful because of the defective attitude of the respondent No.3 regarding the welfare of minor petitioner/detenue should have been focused by the respondent No.3 and not to becoming a trouble for the healing development of minor petitioner.
22. Learned Counsel for the petitioners submits that the petitioner's next friend/ mother of the detenue is well educated having M.B.A. in Finance and Human Resources she is physically , financially and emotionally very much eligible for taking care of child in every way. It is further argued that the cost and expenses of delivery of the child were incurred by her She has a constant source of earning accrued from the interest over her savings in Bank. It is further argued that the mother was in a reputed job of teaching as an Assistant Professor in BBD University at Lucknow but since birth of child, only for the purpose of looking after him and care she left that job. Thus, she is mentally and financially capable to keep the detenue/ her son-Master Devansh Agarwal.
23. After considering the arguments as advanced by learned counsel for the parties this Court finds that minor child should not be deprived of the love and affection of both the parents as deprivation results in a grave phycological impact upon the impressionable and innocent disposition of a child in his formative years and in this case the minor child is being deprived of the love an affections of his own father, and the father is not able to interact with his son meaningfully. Whenever a question arises before a court pertaining to the custody of the minor child, the matter 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 child. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. Further the question of custody cannot be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. It is further held that the welfare of the child must be decided on a consideration including the general psychological, spiritual and emotional welfare of the child. While resolving the disputes between the rival claimants for the custody of a child, the aim of the Court must be to choose the course which will best provide for the healthy growth, development and education of the child so that he or she will be equipped to face the problems of life as a mature adult.
In the case of Nithya Anand Raghvan v State (NCT of Delhi) and another 2017 8 SCC 454, it was held by Hon'ble Apex Court that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The relevant observations made in para 44 to 47 in the judgement are being reproduced herein below:
"44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful.
45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247, has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition.
46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child."
Similarly, in the case of Shradha Kannaujia (Minor) and Another ,Vs State of U.P. and 5 others in Habeas Corpus No. 716 of 2020 Single bench of this Hon'ble court was pleased to observe as under:
7. "It is well settled that writ of habeas corpus is a prerogative writ and an extraordinary remedy. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in case of Sayed Saleemuddin vs. Dr. Rukhsana and others (2001)5 SCC 247 and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. In said case it was held as under:-
"11. ...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..."
24. In the present case the detenue is living with his mother as directed by a co-ordinate Bench of this Court vide order dated 06.01.2022. The custody of minor son Master Devansh Agarwal shall remain with the mother but the parties will be at liberty to get their exclusive rights for custody of the minor son Master Devansh Agarwal as guardian by filing appropriate application under the Guardians and Wards Act or before any other forum in accordance with law.
Further, in the interest of justice and considering the arguments advanced by learned counsel for the parties, the orders dated 14.12.2021 and 06.01.2022 are modified to the following extent:
1. During Summer Season (April to September): Dr. Dinesh Agarwal, father of the detenue-Master Devansh Agarwal as agreed will have right to visit the child Master Devansh at the residence of detenue's mother Smt. Deepti Goyal at House No. B-47, Sector-H, Aliganj, District Lucknow, where she used to reside with the child between 10.00 a.m. to 01.00 p.m. on every Sunday of each month w.e.f. 09.04.2023 and onwards in the presence of mother of the detenue, namely, Smt Deepti Goyal or any other family members of her parental house, in their supervision and control, however they are not permitted to make any obstruction in such visiting of the child by the father.
Further on the same day, Dr. Dinesh Agarwal, father of the detenue-Master Devansh Agarwal, shall have visitation rights to meet Master Devansh Agarwal in the neighbourhood park i.e. Science Centre, Aliganj, Lucknow between 5.00 p.m. to 7.30 p.m. in the presence of detenue's mother/ her next friend Smt Deepti Goyal or any other family members of her parental house, in their supervision and control, however they are not permitted to make any obstruction in such visiting of the child by the father and before 8.00 p.m. the minor child should be safely given in the custody of detenue's mother/ her next friend Smt Deepti Goyal at her residence address, as noted above by the father-respondent No.3 Dr. Dinesh Agarwal.
2. During Winter Season (October to March): Dr. Dinesh Agarwal, father of the detenue-Master Devansh Agarwal, shall have visitation rights to meet Master Devansh Agarawal in the neighbourhood park i.e. Science Centre, Aliganj, Lucknow between 10.00 a.m. to 1.00 p.m. on every Sunday of each month in the presence of mother of the detenue/ her next friend, namely Smt. Deepti Goyal or any other family members of her parental house, in their supervision and control, however they are not permitted to make any obstruction in such visiting of the child by the father and before 1.30 p.m. the minor child should be safely given in the custody of detenue's mother/ her next friend Smt Deepti Goyal at her residence address, as noted above.
Further on the same day Dr. Dinesh Agarwal, father of the detenue-Master Devansh Agarwal will have to right to visit the child Master Devansh at the residence of Smt. Deepti Goyal at House No. B-47, Sector-H, Aliganj, District Lucknow, where she used to reside with the child between 05.00 p.m. to 07.30 p.m. on every Sunday of each month in the presence of detnue's mother/ her next friend or any other family members of her parental house, in their supervision and control, however they are not permitted to make any obstruction in such visiting of the child by the father.
3. The grandfather and grandmother of the detenue-Master Devansh Agarwal are also permitted to meet the detenue along with Dr. Dinesh Agarwal, father of the corpus on fourth Sunday of each month (January to December) at any standard Hotel/Shopping Mall/Restaurant within the 5 Km radius of house of petitioner's next friend/mother-Smt Deepti Goyal for refreshment and outing and to build the social and mental ability of the child in the morning between 10.00 a.m. to 1.00 p.m. for the first meeting and in the evening between 5.00 p.m to 7.30 p.m. for the second meeting. The minor child should be safely given in the custody of petitioner's next friend / mother-Smt Deepti Goyal at her residence address i.e. House No. B-47, Sector-H, Aliganj, District Lucknow before 1.30 p.m in the aftenoon after first meeting and before 8.00 pm in the night after second meeting . The petitioner-Smt Deepti Goyal and her one relative may also accompany the detenue, if they so desired during that period.
4. In case, for any reason if respondent No. 3-Dr. Dinesh Agarwal fails to visit the child on Sunday, after informing the next immediate day after Sunday within one or two days to the petitioner's next friend/ mother Smt. Deepti Goel, may visit the child on that altered day.
5. Dr. Dinesh Agarwal, father of the detenue- Master Devansh Agarwal, has right to contact with his son telephonically either audio or video mode. For the purpose of telephonic conversation, Smt Deepti Goyal, the mother will facilitate the child with telephone/mobile phone. It may be appropriate for both of them i.e. father and mother of the detenue-Master Devansh to fix a time for telephonic conversations between the children and his father not less than ten minutes.
6. If the father of the child wants to give any gift on account of love and affection of his child or do anything for well- being of child at house/shopping mall/park then mother of child or any family members of Smt. Deepti Goyal will not make any objection. However, father shall keep in mind that such thing will be given, which are for use and safety of the children.
7. Reciprocally, the petitioner's next friend, mother of the child Master Devansh shall ensure to remain present at the House No. B-47, Sector-H, Aliganj, District Lucknow for the purpose of complying with the direction as to the visitation right given to the father or on any other date as stipulated herein-above. The mother shall not leave or change the house of her abode with child without seeking prior permission of the Court and informing to the father of the child, respondent no. 3. She will not leave with child Master Devansh the jurisdiction of the Court without prior permission as directed herein-above.
25. With these observations/directions C.M. Application No. 1A/14/2022, C.M. Application No. 25/2022 and C.M. Application No.15/2022 are finally disposed off.
