the mother need not necessarily have an adverse impact on the upbringing
and safety of the minor child. In today‟s day and age, women are actively
pursuing their professions and avocations. They are also socializing as their
peers, friends, family and colleagues. That does not mean that they are
necessarily failing in performance of their maternal obligations. In fact,
working women are, by and large, having to put in extra time and effort to
keep both ends up, and they are doing it successfully. The child is an infant.
At this age, the child has little understanding of the actions and conduct of
the parents, particularly, those acts and conduct which take place outside the
child‟s environment.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 01.05.2018
W.P.(CRL) 357/2018
KIRAN LOHIA Vs THE STATE GOVT OF NCT OF DELHI & ORS
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S.TEJI
habeas corpus commanding the respondents to produce her minor daughter
in the Court and to set her at liberty into the custody of the petitioner.
petition is directed primarily against her husband who is impleaded as
respondent No. 4.
GIST OF PROCEEDINGS
2. In the petition as originally filed, the petitioner had also impleaded
Mr. Ajey Lohia, father of respondent No. 4, as respondent No.5. The reason
for impleadment of respondent No. 5 as a party respondent was that at the
time of filing of the writ petition (which was filed initially on 31.01.2018),
the minor daughter of the petitioner and respondent no.4 – Baby Raina, was
with respondent No.5 and his wife at Dubai, while the petitioner and
respondent no. 4 were in India. In terms of this Court‟s order dt.
08.02.2018, Baby Raina was brought from Dubai to Delhi and then she was
in the custody of respondent No.4. Consequently, vide order dated
19.02.2018, respondent No. 5 Ajey Lohia was deleted from the array of
parties, on his own request.
3. On 05.03.2018, we interacted with the petitioner and respondent No.4
in Chamber. It was made clear to the parties that the present proceedings
would not be converted into custody proceedings in respect of the minor
child, and the said issue necessarily would have to be decided by the Family
Court concerned in appropriate proceedings. After hearing learned counsels
at some length, we suggested to the parties an interim- without prejudice
arrangement, keeping in mind the welfare of the minor child and the
concerns of the parties with regard to her welfare. Since the hearing on
merits was still underway and the matter was being dealt practically on a day
to day basis, we had not recorded a detailed order on 05.03.2018, lest it
prejudices the case of either party. The matter was adjourned to 07.03.2018,
and thereafter to 08.03.2018.
4. On the said date, respondent No. 4 sought an adjournment which we
were not inclined to grant. We informed respondent No. 4 that in case he
does want an adjournment to engage another counsel, he should be willing
to handover the custody of the minor child, in the interregnum, without
prejudice to his rights and till the matter is heard, to the petitioner.
Eventually, respondent No.4 produced the infant child Baby Raina who was
handed over to the petitioner subject to the certain conditions.
5. At this stage, we may reproduce an extract from our order dated
08.03.2018 which captures some of the relevant facts, some submissions of
the petitioner, and narration of the proceedings which had taken place before
the Court till the passing of the said order. The same reads as follows:
―1. The petitioner has preferred the present writ petition to
seek a writ of habeas corpus, i.e. to seek a direction to the
respondents to produce her minor daughter Raina in the Court
and to set her at liberty in the custody of the petitioner. The
petitioner is the mother of the child Raina, who is one year old.
She was born on 23.02.2017 to the petitioner and respondent
no.4. Unfortunately, the petitioner earlier suffered two
miscarriages and, consequently, Raina was born through
surrogacy.
2. The petitioner and respondent no.4 experienced marital
disputes and differences. In December 2017, the petitioner had
planned to travel to USA with her minor daughter on an annual
holiday. However, since the petitioner could not secure the visa
for the child‘s nanny, the said trip was delayed. In the
meantime, the father of respondent no.4, Ajey Lohia – who was
initially impleaded as respondent no.5 in the petition, requested
the petitioner if he could take Raina along with the maid from
Delhi to Thailand for a four day family trip. The petitioner was
driven into giving her consent on the emotional plea that that
the father - Ajey Lohia was a cancer survivor, and did not have
much time to live and spend time with his granddaughter.
3. According to the petitioner, respondent no.4 and his
father did not want her to accompany them on the trip to
Bangkok. Accordingly, Mr. Ajey Lohia took the minor child
with him to Bangkok, Thailand. After spending some time in
Thailand with the child Raina, he took her to Dubai – where he
has a residence. The petitioner reached Dubai on 29.12.2017
with plans of leaving for USA from Dubai itself. The parents of
the petitioner and her brothers are all residing in USA.
However, the visa of the maid for USA could not be secured.
4. According to the petitioner, on 30.12.2017, she was
denied access to Raina and she was told that Raina would not
be allowed to leave for USA without the maid. On 31.12.2017,
the petitioner was informed that she would be handed over
Raina‘s passport so that they could travel together to New York
on 04.01.2018. However, on the following day, respondent
no.4 had a change of mind and refused to hand over the
passport of the minor child to the petitioner. She was driven
out of the house of the father of respondent no.4 in Dubai.
Consequently, the petitioner came back to New Delhi.
5. After coming back to New Delhi, the petitioner preferred
the present writ petition. The same was listed before the court
on 05.02.2018. On the said date, notice was issued to
respondent no.4 and respondent no.5 Ajey Lohia. On
08.02.2018, respondent nos.4 and 5 put in appearance through
their counsel. Ms. Geeta Luthra, Sr. Advocate appeared on
behalf of respondent no.4, whereas Mr. Vikas Sharma appeared
for the then respondent no.5. This court directed the said
respondents not to leave India till further orders. They were
directed to surrender their respective passports on the same
day before the SHO, Vasant Vihar. The FRRO was also
directed to ensure that neither of them leaves India to any
foreign country till further orders of the court.
6. This court was informed by Ms. Luthra that the child was
presently with her paternal grandmother and one nurse at
Dubai. This court expressed the view that the child could not
be left without the company of either of the parents. Ms. Luthra
then gave an undertaking to the court, on instructions from
respondent no.4, that Raina shall be brought back to Delhi
before the next date. This court also directed respondent nos.4
and 5 to file their respective counter affidavits before the next
date of hearing, which was fixed for 13.02.2018.
7. Counter affidavit was filed on behalf of respondent nos.4
and 5 on 13.02.2018. This court was informed that the child
had been brought back to India and was at the residence of
respondent no.4. This court granted access to the petitioner
and her parents, to the residence of respondent no.4 to meet the
child at any time. However, the child was not to be removed
from the residence of respondent no.4 by the petitioner. This
court also directed that the child shall not be removed from
Delhi, unless orders are obtained from the court. The
injunction against respondent no.5 from travelling outside
India was lifted, since the child had been brought back. The
matter was adjourned to 19.02.2018.
8. On 19.02.2018, Crl. M.A. No. 3166/2018 moved by the
petitioner to seek a formal amendment of the prayer made in
the writ petition. Notice of the said application was issued to
the respondents. They were granted time to file their reply.
Respondent no.5 was deleted from the array of respondents,
since the dispute essentially was between the petitioner and
respondent no.4, who are the parents of the minor child.
9. On 27.02.2018, the said application for amendment was
allowed, and the arguments in the writ petition commenced.
Learned counsel for the petitioner was partly heard and the
matter was adjourned to 28.02.2018. Further arguments were
heard on 28.02.2018. During all these hearings, respondent
no.4 was continuously represented through either the senior
counsel or his counsel on record. On 27.02.2018, Mr. Ravi
Gupta, Sr Advocate along with Mr. Sanjeev Sharma, Mr. Gopal
Dutt and Ms. Archin Mishra, Advocates appeared on behalf of
respondent no.4. On 28.02.2018, once again, respondent no.4
was represented through the aforesaid counsels minus learned
senior counsel. The matter was further adjourned to
05.03.2018, and thereafter it was adjourned to 07.03.2018.
Since this court was busy in hearing some other matter, it was
adjourned for today.‖
6. In our order dated 08.03.2018, we recapitulated the proceedings
which had transpired on 05.03.2018. In respect of the proceedings of
05.03.2018 we recorded:
“10. We may observe that we had interacted with the parties
in chamber on the request of counsel for respondent no.4 on
05.03.2018. We had then made it clear to the learned counsels
that the present proceedings could not be converted into a
custody proceeding in respect of the minor child, and that the
said issue would necessarily have to be decided by the Family
Court concerned in appropriate proceedings. We had, however
- after interacting with the parties, made a suggestion to both
the parties regarding the interim arrangement that, in our view,
appeared to be in the interest of the child and also addressed
the concerns of the parties i.e. the petitioner and respondent
no.4. We had suggested the interim custody of the minor child
could be with the petitioner mother considering her infancy,
with regular visits of the child to the residence of respondent
nos.4 and his father - practically on a daily basis, so that she
could spent (sic spend) time with them and derive love and
affection from them as well. We had been informed that
respondent no.4, his parents and the petitioner were all
residing in the same locality i.e. Vasant Vihar, New Delhi.
Learned senior counsel for the respondent no.4 sought a short
adjournment to consider the said proposal.‖
7. The terms and conditions, subject to which we had granted interim
custody of the child to the petitioner, were as follows:
(i) The child shall remain in the custody of the petitioner till
the decision of the writ petition. However, the petitioner
is directed not to remove the child from Delhi.
(ii) The passport of the child is with respondent No.4. He
shall continue to retain the same for the time being.
(iii) The petitioner may engage a maid to look after the child.
(iv) The petitioner has informed the Court that she has taken
on rent the premises situated at 37, Paschimi Marg,
Vasant Vihar, New Delhi. Though, the petitioner is
residing at E-12/1, 3rd Floor, Vasant Vihar, New Delhi;
his parents are residing at B-20, Ground Floor, Vasant
Marg, Vasant Vihar, New Delhi. During the working of
this interim arrangement, neither party shall change his/
her address without prior intimation to the Court. Ajey
Lohia shall also continue to live at the same address, and
no change shall be made without prior intimation to this
court.
(v) The child shall be left at the residence of the parents of
the respondent No.4 (as desired by respondent No.4) at
02:00 p.m. on week days i.e. Monday to Friday, and shall
be collected at 07:00 p.m. on the same day by the
petitioner.
(vi) On Saturdays, the child shall remain in the custody of the
petitioner, with no visitation rights to respondent No.4 or
his parents.
(vii) On Sundays, the child shall be left at the residence of
parents of the respondent No.4 (as desired by respondent
No.4) at 10:00 a.m. in the morning, and collected at
07:00 p.m. in the same evening by the petitioner. We
have made this arrangement keeping in view the welfare
of the child, since the child, admittedly, was with
respondent No.4 and his parents till now, ever since the
child was taken to Bangkok and Dubai, and brought back
to Delhi, with the petitioner having visitation rights.
(viii) At the time of visitation, the respondent No.4 and his
parents shall not remove the child from the residence.
(ix) During the time when the child is with respondent No.4
and his parents, she shall be accompanied by the maid
employed by the petitioner.
(x) The visitation rights shall be operated from tomorrow,
i.e. 09.03.2018 onwards.
(xi) This arrangement shall continue till the petition is
disposed of.
(xii) Both the petitioner and the respondent No.4 shall strictly
abide by this condition, and if it is reported that either of
the two parties have not complied with this condition, or
have resisted its compliance, this Court shall re-consider
the arrangement.
(xiii) This arrangement has been worked out without prejudice
to the rights & contentions of either of the parties. It is
not a reflection of the merits of the case of either party.
8. On 13.03.2018, the order dated 08.03.2018 was slightly modified
inasmuch, as, the child was to remain with the petitioner on Sundays, and
was to be handed over to respondent No. 4 and his parents on Saturdays in
modification of clauses (vi) and (vii) of the aforesaid conditions. This
arrangement is continuing in operation presently. The submissions of
learned counsels were thereafter heard on 03.04.2018 and on 04.04.2018,
and judgment reserved.
9. The matter was jointly mentioned by learned counsels on 16.04.2018.
Learned counsels placed before us the order passed by the Supreme Court in
SLP(Crl.) No. 3340-41/2018 on 13.04.2018, wherein the Supreme Court
requested this Court to dispose of the present writ petition by 10.05.2018,
since the controversy relates to the custody of a child in the present petition.
On the said date, we permitted learned counsels to file their respective
written arguments in two pages confined to the aspect with regard to the
power of the court to grant relief in relation to interim custody in a writ of
habeas corpus under Article 226 of the Constitution of India. Consequently,
learned counsels have delivered their respective written submissions. We
have perused and considered the same as well.
SUBMISSIONS OF THE PARTIES
10. Ms. Rajkotia has submitted that a writ of habeas corpus is
maintainable in relation to the custody of a minor child, where the custody
of the minor child is unlawful or illegal, and where the welfare of the child
requires that the present custody be changed to that of another person. In
such proceedings, the role of the High Court in examining the aspect of
custody of minor child is on the touchstone of the principle of parens
patriae. In this regard, Ms. Rajkotia, has placed reliance on ABC Vs. State
of NCT AIR 2015 SC 2569. Reference is also made to Nithya Anand
Raghavan Vs. State (NCT of Delhi) and another AIR 2017 SC 3137 and
Ruchi Majoo Vs. Sanjeev Majoo AIR 2011 SC 1952.
11. Ms. Rajkotia submits that Baby Raina was initially in the custody of
the petitioner and it was with the consent of the petitioner that the child was
taken by the father of respondent No.4, (erstwhile respondent No.5), firstly
to Bangkok and from there to Dubai on a vacation. In this regard, reference
is made to paragraph (a) on page 24 of the counter affidavit of respondent
No.4, wherein he, inter alia, states:
―(a) That on 15.12.2017, the respondent No.4‘s father who is
a cancer survivor asked the petitioner as to whether it was
possible for her leave the baby with him for few days to visit
Bangkok and Dubai as they were to go for vacations to the said
places on 20.12.2017. The respondent (sic petitioner) gave her
consent to respondent No.4‘s father for taking the minor child
of the parties for vacations.‖
However, the petitioner was denied entry into the residence of Shri
Ajey Lohia (erstwhile respondent no.5) at Dubai even to meet the child, let
alone to bring her back to India. The petitioner being the lawful guardian of
the one year old minor child, was entitled to maintain the present petition to
retrieve her from the custody of Shri Ajey Lohia, at Dubai, and to get the
custody of the minor child with herself.
12. She submits that custody of a minor child, who has not completed the
age of five years, should ordinarily be with the mother, as provided under
Section 6(a) of the Hindu Minority and Guardianship Act, 1956 („HMG Act‟
for short). She submits that the law presumes that it is in the best interest of
the child – who is under five years of age, that the child should remain in the
custody of the mother. This presumption is rebuttable, but the burden to
rebut the same is heavy, and lies on the other parent. She submits that the
said burden has not been discharged by the respondents.
13. Ms. Rajkotia submits that the petitioner being the biological mother of
Baby Raina, has been looking after her from the beginning. In this regard,
Ms. Rajkotia has drawn our attention to the text messages exchanged by the
petitioner with one Dr. Rajiv Seth, a pediatrician, since March, 2017, for
periodic vaccination of the child and in relation to other aspects. Ms.
Rajkotia has also drawn our attention to Whatsapp communications
exchanged between the petitioner and respondent No.4, in relation to the
bringing up and handling of the minor child. She submits that these
conversations show the concern that the petitioner has for her child, and her
disapproval of the manner in which respondent No.4 and his family
members were pampering and handling the child.
14. Ms. Rajkotia submits that the petitioner is a successful and established
professional with a high reputation as a dermatologist. She is responsible for
the success of the clinics which have been set up, and which are being
managed by respondent No.4. Ms. Rajkotia submits that the petitioner was
interested in cutting down her professional engagements to spend more time
with Baby Raina, whereas respondent No.4 was keen on expanding the
business. In this regard, she places reliance on conversations exchanged
between the petitioner‟s father and Ajey Prakash Lohia – the father of
respondent No.4.
15. Ms. Rajkotia submits that in their counter affidavit, the respondents
have not been able to bring out any cogent aspect, which would suggest that
the custody of the minor child with the petitioner would be detrimental to the
interest of the minor child, or would not be in her welfare. Therefore, she
submits that till the issue of custody of the minor child is resolved in
appropriate proceedings before the Family Court, in the interregnum, the
petitioner should have the custody of the minor child considering that she is
only one year old, and the petitioner is her biological mother.
16. On the other hand, the submission of learned counsel for respondent
No. 4 is that the present petition is premised on false and concocted
averments. Learned Counsel submits that the respondent No.4, or his
parents, never intended to separate Baby Raina from the petitioner.
Respondent No. 4 is keen to repair his relationship with the petitioner, so
that they can live together as a family with their minor child in their own
best interest. Respondent submits that after correspondence with Ajey
Prakash Lohia – the father of respondent No.4, the petitioner had come over
to Dubai and was living with respondent No. 4 and the minor child at the
house of Ajey Prakash Lohia in Dubai. She had planned to travel to USA
with the minor child to visit her parents and brother in USA. However, the
Visa for USA for the maid could not be secured and, consequently, she
could not travel to USA. Learned Counsel submits that, over an argument
with respondent No.4, the petitioner tried to take the extreme step of
jumping off the balcony of the house in Dubai and commit suicide. Only
with a view to save the minor child from witnessing the disputes between the
petitioner and respondent No.4, respondent No.5 asked the petitioner and
respondent No.4 to leave the house and to return after the petitioner and
respondent No. 4 settled their disputes. Accordingly, they checked into a
hotel room and after respondent No. 4 asked for forgiveness of Ajey Lohia,
respondent No.4 returned to the house of Ajey Lohia, his father. However,
the petitioner did not diffuse the situation, and chose to return to India.
Thereafter, she preferred the present petition.
17. It is argued on behalf of the respondent that a writ of habeas corpus
would not lie to seek custody of a minor child, particularly when the same is
with a lawful guardian. It is submitted that respondent No.4 being the
father, is one of the lawful guardian of the minor child. In this regard,
reliance is placed on Githa Hariharan (Ms.) and another Vs. Reserve Bank
of India and another (1999) 2 SCC 228 and, in particular, following extract
from the said decision:
―43. ……..It is an axiomatic truth that both the mother and the
father of a minor child are duty-bound to take due care of the
person and the property of their child and thus having due
regard to the meaning attributed to the word ―guardian‖, both
the parents ought to be treated as guardians of the minor. As a
matter of fact, the same was the situation as regards the law
prior to the codification by the Act of 1956. The law, therefore,
recognised that a minor has to be in the custody of the person
who can subserve his welfare in the best possible way — the
interest of the child being the paramount consideration.
44. In the event, the word ―guardian‖ in the definition
section means and implies both the parents, the same meaning
ought to be attributed to the word appearing in Section 6(a)
and in that perspective, the mother's right to act as the
guardian does not stand obliterated during the lifetime of the
father and to read the same on the statute otherwise would
tantamount to a violent departure from the legislative intent.
Section 6(a) itself recognises that both the father and the
mother ought to be treated as natural guardians and the
expression ―after‖ therefore shall have to be read and
interpreted in a manner so as not to defeat the true intent of the
legislature.‖
18. Learned counsel submits that the petitioner cannot short-circuit the
proceedings already initiated by the respondent before the guardianship
court under Guardians and Wards Act, 1890, by filing or pursuing the
present proceedings. The respondent has submitted that on 12.03.2018, i.e.
after the interim custody of the minor child was directed to be handed over
to the petitioner by this Court on 08.03.2018, the respondent has initiated the
proceedings under the Guardians and Wards Act, 1890. Only thereafter, the
petitioner has sought amendment of the writ petition. Learned counsel for
the respondent has placed reliance on Sumedha Nagpal Vs. State of Delhi
and ors. (2000) 9 SCC 745, wherein the Supreme Court dismissed a writ of
habeas corpus filed by the mother under Article 32 of the Constitution of
India to seek the custody of the child by, inter alia, observing as follows:
―2…..since these are disputed facts, unless the pleadings raised
by the parties are examined with reference to evidence by an
appropriate forum, a proper decision in the matter cannot be
taken and such a course is impossible in a summary proceeding
such as writ petition under Article 32 of the Constitution.
3. Without expressing any view of the pleadings raised in
this case and making it clear that it is neither appropriate not
feasible in the present case to investigate the correctness of the
same and decide one way or the other, we propose to relegate
the parties to work out their respective rights in an appropriate
forum like the Family Court or the District Court in a
proceeding arising under Section 25 of the Guardians and
Wards Act read with Section 6 of the Act or for matrimonial
relief.‖
19. Reliance is also placed on Sheela Vs. State NCT of Delhi
(2008) 149 DLT 476 (DB). This Court dismissed a Writ of Habeas
Corpus filed by the mother, and asked the parties to ‗battle out the
custody of the child in appropriate proceedings before the
appropriate fora‘. The relevant para is as follows:
―9. ….Even otherwise, the custody of the child, in our
view, must be given to the parent capable of ensuring the
welfare of the child and it is not for this court in writ
proceedings to determine where the welfare of the child
lies. This is essentially a matter of evidence and in the
domain of the Guardian Court. We, therefore, see no
conceivable reason to trespass or stray into the said
domain by issuing a writ of habeas corpus in favour of
the petitioner for handing over the custody of the child to
the petitioner, which is presently with the respondent
No.2. A three-Judge Bench of the Hon‘ble Supreme
Court in the case of Dr. (Mrs.) Veena Kapoor V. Shri
Varinder Kumar Kapoor (1981) 3 SCC 92 has observed
as under:
―It is well settled that in matters concerning
the custody of minor children, the
paramount consideration is the welfare of
the minor and not the legal right of this or
that particular party. The High Court,
without adverting to this aspect of the
matter, has dismissed the petition on the
narrow ground that the custody of child with
the respondent cannot be said to be illegal.
It is difficult for us in this habeas corpus
petition to take evidence without which the
question as to what is in the interest of the
child cannot satisfactorily be determined.‖
20. For the same purpose, reliance is placed on K.Suganya Vs.
Superintendent of Police MANU/TN/1617/2011 decided on 14th March,
2011. The Madras High Court held:
―…….this court is of the considered view that the habeas
corpus petition filed under Article 226 of the Constitution of
India shall not be the appropriate proceedings to make a
decision as to who, between the petitioner and the 4th
respondent, shall be entitled to the custody of the child. It
needs elaborate enquiry, in which opportunity is to be given to
both the parties to lead evidence. The same can be
conveniently done only in a civil court/ family court. For the
said reason alone, we are of the considered view that the
present habeas corpus petition should fail and the same
deserves to be dismissed.‖
21. At the same time, learned counsel for the respondent No.4 has also
argued that the issue of custody of a child has to be decided by application of
the doctrine of parens patriae i.e. by applying the concept of „welfare of the
minor child‟ as of paramount importance.
22. Reference is also made to Sumedha Nagpal (supra) to submit that the
rights arising under proviso to Section 6(a) of the HMG Act would not
militate against the welfare of the minor child. Respondent No.4 has also
argued that since the minor child Baby Raina has been born out of
surrogacy, Section 6(a) cannot be invoked, since the mother of a child born
out of surrogacy, is not naturally attached to the child.
23. Learned Counsel for respondent No. 4 has drawn the attention of the
court to the Whatsapp conversations that the petitioner has had with her
friend – one Ms. Yixiu Zheng, to submit that the petitioner apparently is
having an extra-marital affair. The submission of respondent No.4 is that
the petitioner is too busy partying, practically on a daily basis. She returns
home late in the night in an inebriated condition, and she barely spends 15 to
20 minutes in a day with minor child. The child has always been looked
after by respondent No.4 and his parents.
24. Respondent No.4 has also placed reliance on the Whatsapp
conversations exchanged between respondent No.4 and the petitioner‟s
mother, wherein the petitioner‟s mother has also expressed her concern over
the manner in which the petitioner is conducting herself. He submits that
the petitioner is undergoing psychiatric therapy for depression.
25. Respondents have also drawn the attention of the court to Sections 7
and 17 of the Guardians and Wards Act, 1890, to submit that it is the welfare
of the child which should be seen while appointing a guardian in respect of a
minor child. The submission is that even while formulating an interim
arrangement, the said aspect should be of paramount consideration. Ms.
Kamini Jaiswal has also sought to draw a comparison of the advantages in
granting the interim custody of the minor child to respondent No.4, in
preference to the petitioner.
26. Ms. Jaiswal submits that the petitioner is living in a rented
accommodation presently, and her parents and brother are American citizens
and are settled in USA. Even the petitioner holds an American passport.
Though the parents of the petitioner/one of them may be in India presently,
the same is only a stop-gap arrangement, and once neither of them are in
India, there would be nobody to look after the minor child in the absence of
the petitioner – who is a working professional, apart from a socialite. The
submission of learned counsel for respondent No.4 is that he being the
father, is most concerned about the minor child being left in the company of
only maids and servants, as that would expose the minor girl child to all
kinds of risks, and pose the danger of her being harmed and exploited. On
the other hand, the parents of the respondent No.4 are always at home, and
the paternal grandmother of the minor child is totally responsible for her
upbringing; for preparing her meals and feeding her, and; spending time
with her.
27. Learned counsel for respondent No. 4 further submits that respondent
No. 4 has not much interest in socializing or partying, and he is more of a
family man and likes to spend his time with his family. In contrast, the
petitioner is a busy professional and is also interested in maintaining an
active social life, and is hardly available to the child to take care of her and
spend time with her.
28. Respondent relies upon Nil Ratan Kundu and another Vs. Abhijit
Kundu (2008) 9 SCC 413 to submit that welfare of the child is not to be
measured by money only, nor merely physical comfort and that 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. The tie of
affection cannot be disregarded.
29. In her rejoinder, learned counsel for the petitioner has argued that the
submissions of respondent No.4 tantamount to character assassination of the
petitioner. The messages exchanged between the petitioner and her female
friend are her private affair, and no reliance can be placed on the same, as it
breaches the petitioner‟s fundamental right to privacy. In any event, the
same has no adverse bearing on the petitioner‟s role as a mother qua the oneyear-old
minor daughter. She submits that her parents or, at least one of
them, wish to spend time in India with her and their granddaughter. She also
submits that the petitioner is a responsible mother and well aware of her
responsibilities towards her daughter and about her well being. Under no
circumstances, the petitioner would expose her child to any risks or dangers.
OUR CONSIDERATION
30. We have given our thoughtful consideration to the rival submissions
of the parties. So far as the submission of respondent No.4 with regard to
non-maintainability of this petition is concerned, we do not find any merit in
the same. The earliest relevant date to be considered by the Court, while
examining the legality of detention – in a petition to seek a writ of Habeas
Corpus, is as on the date of institution and preliminary hearing of the
petition. In this regard, we may refer to the decision of the Supreme Court
in Kanu Sanyal v. District Magistrate, Darjeeling & Ors., (1974) 4 SCC
141. The Supreme Court, inter alia, observed in Kanu Sanyal (supra):
“4. … … It is now well settled that the earliest date with
reference to which the legality of detention challenged in a
habeas corpus proceeding may be examined is the date on
which the application for habeas corpus is made to the Court.
This Court speaking through Wanchoo, J., (as he then was) said
in A.K. Gopalan v. Government of India: [AIR 1966 SC 816 :
(1966) 2 SCR 427 : 1966 Cri LJ 602]
―It is well settled that in dealing with the petition
for habeas corpus the Court is to see whether the
detention on the date on which the application is
made to the Court is legal, if nothing more has
intervened between the date of the application and
the date of the hearing.”
31. The Supreme Court further observed in the same paragraph:
“… … the earliest date with reference to which the legality of
detention may be examined is the date of filing of the
application for habeas corpus and the Court is not, to quote the
words of Mr Justice Dua in B.R. Rao v. State of Orissa [(1972)
3 SCC 256] ―concerned with a date prior to the initiation of the
proceedings for a writ of habeas corpus”.
32. We had occasion to consider the issue of maintainability of a writ of
habeas corpus in Moin Akhtar Qureshi v. Union of India & Ors.,
W.P.(Crl.) No.2465/2017 decided on 01.12.2017. After analyzing several
decisions of the Supreme Court, this Court and other High Courts, it was
held:
“We have set out in-extenso, the well-settled legal position with
regard to maintainability of a writ petition under Article 226 of
the Constitution of India to seek a writ of Habeas Corpus in
respect of a person who is detained under the orders of a
Competent Court. It is equally well-settled by a catena of
decisions, taken note of hereinabove, that the earliest date
with reference to which the illegality of detention may be
examined in a Habeas Corpus proceeding, is the date on
which the application for Habeas Corpus is made to the
Court, if nothing more has intervened between the date of the
application and the date of hearing. The decisions taken note
of hereinabove show that, in some cases, it was the date of
return in the writ proceedings which was considered as the
relevant date to determine as to whether the detention of the
arrestee was illegal, while in other cases, the Supreme Court
also observed that the issue would have to be determined by
reference to the position emerging on the date of hearing of the
petition. The Full Bench of this Court in Rakesh Kumar
(supra), after a detailed analysis of the earlier decisions,
including the decisions in Madhu Limaye (supra), Kanu
Sanyal (supra), Niranjan Singh Nathawan (supra), Ram
Narayan Singh (supra), A.K. Gopalan (supra), Pranab
Chatterjee (supra), Talib Hussain (supra) and Col. Dr. B.
Ramachandra Rao (supra), held that if, up to the date of
hearing of the writ petition, it is shown that the detention/
arrest of the person is valid, the mere fact that his detention had
been invalid earlier, would not entitle such a person to have
any redress in a Habeas Corpus petition”. (emphasis supplied)
33. The undisputed factual position is that the custody of the minor child,
before she was taken to Thailand and thereafter to Dubai, was with the
petitioner. Since the child was taken with the consent of the petitioner, she
continued to remain in the custody of the petitioner, as her custody with
Ajey Lohia was only permissive. However, the claim of the petitioner is that
she was not allowed to meet, much less take away the child in Dubai, and
the petitioner returned to India without the child, she lost the custody of the
child to Ajey Lohia in Dubai. When the writ petition was preferred before
this Court on 31.01.2018, and initially listed before us on 05.02.2018, the
actual custody of the minor child was neither with the petitioner, nor with
respondent No.4. The custody was, as on those dates, with erstwhile
respondent No.5 i.e. Ajey Lohia and that too in Dubai, whereas both the
petitioner and respondent No.4 were in India. It was only under the
directions of this Court- issued on 08.02.2018, that the minor child was
brought back to India. This position was informed to the petitioner and
recorded by the Court in the order dated 13.02.2018. Even on that date, the
custody was not with the petitioner, but with respondent no.4. Since the
petitioner‟s contention is that the minor child is only one year old, and in
terms of Section 6(a) of the HMG Act the custody of the minor child
ordinarily should be with the mother in the best interest of the child, the
examination of the said submission is essential and for that purpose the
petition is maintainable. Reliance placed on Githa Hariharan (supra) is not
appropriate in the facts of the case. There is no denying the fact that
respondent No. 4 is also a guardian of the minor child. However, the
legislative intent in Section 6 (a) of HMG Act is clear, that the “custody” of
a child under the age of 5 years shall ordinarily be with the mother-guardian,
in preference to the father-guardian.
34. Section 6 of the Hindu Minority and Guardianship Act, 1956, insofar
as it is relevant reads as follows:
―6(a) in the case of a boy or an unmarried girl-the
father, and after him, the mother: provided that the custody
of a minor who has not completed the age of five years
shall ordinarily be with the mother;‖ (emphasis supplied)
35. Section 6(a) of HMG Act is a provision dealing with the aspect of
“custody” and not “guardianship” of the minor child. Thus, Githa
Hariharan (supra) is not relevant for our purpose.
36. Respondent No. 4 has stated in his written submissions that the
petitioner sought amendment of the writ petition on 16.03.2018, i.e., after he
had initiated the custody proceedings under the Guardians and Wards Act,
on 12.03.2018. Factually, this is not the position. The application for
amendment i.e. Criminal M.A. No. 3166/2018 had been moved by the
petitioner prior to 19.02.2018. On the said application, notice was issued to
the respondents, including, respondent No.4 on 19.02.2018 and the said
application was allowed by this Court vide order dated 27.02.2018. The
order granting interim custody of the minor child to the petitioner was
passed on 08.03.2018, when no proceedings for custody of the child were
pending before any forum. Only thereafter respondent No.4 initiated the
proceedings as per his own disclosure on 12.03.2018.
37. On the aspect of maintainability of a petition under Article 226 of the
Constitution of India, to seek a writ of habeas corpus in respect of minor
child, in such like circumstances, there are numerous precedents. We may
only take note of Syed Saleemuddin v. Dr Rukshana & Ors., (2001) 5 SCC
247 and Ruchi Majoo (supra). In Syed Saleemuddin (supra), the Supreme
Court has held:
―10. This Court in the case of Gohar Begum v. Suggi [AIR
1960 SC 93 : 1960 Cri LJ 164 : (1960) 1 SCR 597] dealt with a
petition for writ of habeas corpus for recovery of an 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 courts
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 the present
custody should be changed and the children should be left in
the 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 for 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)
38. In Ruchi Majoo (supra), the Supreme Court observed:
“58. … … A High Court may, therefore, invoke its
extraordinary jurisdiction to determine the validity of the
detention, in cases that fall within its jurisdiction and may also
issue orders as to custody of the minor depending upon how the
Court views the rival claims, if any, to such custody”.
Thus, we reject the submissions of learned counsel for respondent
No.4 that the present petition was not maintainable either on the date of its
filing; or on the date of its initial listing on 05.02.2018, and on subsequent
dates or on the date when the Court passed directions for interim custody of
the minor child on 08.03.2018; or on the date when the same was finally
heard and judgment reserved.
39. In the context of a situation where the child has been brought into
India from a foreign country by one of the parents, and the other has
approached the Court with a writ of Habeas Corpus, it has repeatedly been
held that the Court may undertake a detailed inquiry into the aspect of
welfare of the minor child and finally determine the said issue, or it may
undertake a summary enquiry, and leave the parties to have the same
determined in appropriate proceedings by the competent Court. In this
regard, reference may be made to Dhanwanti Joshi Vs. Madhav Unde,
(1998) 1 SCC 112, and V. Ravi Chandran Vs. Union of India & Ors.,
(2010) 1 SCC 174.
40. In our view, in the context of a child who is an Indian citizen and
resident, and whose parents are also Indian residents, the scope of the
proceedings under Article 226 of the Constitution – if the said jurisdiction is
justifiably invoked, would be to undertake only a limited enquiry into the
aspect of best welfare of the minor child for working out an interim living
arrangement, and leave the parties to operate the statutory mechanism
which is available to the parties to have the said issue determined after a
thorough enquiry. This Court does not, normally, determine issues of
disputed facts in writ proceedings. Since the parties are residents in India,
there is no reason why they should not be relegated for determination of the
issue of custody by the competent Court, particularly when respondent No. 4
has already initiated custody proceedings. This course of action would also
be in accordance with the decisions relied upon by the respondent No. 4 in
Sumedha Nagpal (supra); Sheela Vs. State NCT of Delhi (2008) 149 DLT
476 (DB); and K.Suganya Vs. Superintendent of Police
MANU/TN/1617/2011. Thus, we are undertaking only a summary enquiry
into the said issue, i.e. what would be the best living arrangement for the
minor child – considering she is only about one year old, which would meet
her needs of love – from her parents, grandparents and others, and care –
physical, psychological, etc., which are essential for her development and
upbringing, so that she is least adversely affected by – and remains insulated
from the effects of her parental discord. We leave it to the parties to
approach the competent Court to have the issue of custody decided upon
after a more detailed enquiry.
41. The child in question is a one year old baby girl. Though, she was
born out of surrogacy – since the petitioner suffered two earlier
miscarriages, she is nevertheless the biological mother of the petitioner
child, and respondent No.4 is the biological father of the child. Thus, it is
only natural that the petitioner and respondent No. 4 – and their respective
family members, hold love and affection in their hearts for the minor child.
We cannot accept the submission of respondent No.4 that the petitionerthough
being the biological mother of the minor child, would have any less
love or affection for her since the minor child was born out of surrogacy.
The said submission of learned counsel for Respondent No.4 cannot be
accepted for various reasons. Firstly, the minor child is the biological child
of the petitioner and respondent No.4 and the sense of belonging, love and
affection that the petitioner would hold for the minor child would be no less,
merely because minor child was born out of surrogacy. If this submission
of respondent No. 4 were to be accepted, it would also mean that respondent
No. 4 would not hold the same love and affection for the minor child, as he
would have held and experienced, for a child born to him from his wife i.e.
the petitioner, naturally. Secondly, even in respect of an adopted child, the
parents, by and large, express and feel the same sense of love and affection
with equal intensity as they would feel in respect of their naturally born
child. The submission of the respondent No.4, in our view, devalues the
great qualities of love and bonding that are experienced not only by human
beings, but all animal species. In our view, there is no basis for this
submission of learned counsel for respondent No.4, and we reject the same.
42. Prior to the child being taken by Mr. Ajey Lohia to Bangkok and
thereafter to Dubai in December, 2017, it is clear that the petitioner was
residing with respondent No. 4 in her matrimonial home, and it was with her
consent that the paternal grandparents took the minor child Raina to
Bangkok and thereafter to Dubai for a holiday. The fact that the petitioner
granted consent to the minor child being taken by Ajey Lohia to Bangkok,
and thereafter to Dubai, demonstrates the mutual understanding and regard
that they had between themselves, and the confidence that the petitioner and
respondent No.4 had in Ajey Lohia and his wife in taking care of the minor
child, even in their absence. The Whatsapp communications exchanged
between the petitioner and Ajey Lohia show that after the child had been
taken by Ajey Lohia to Bangkok, the petitioner desired to join them at
Bangkok. Though, at one stage, Ajey Lohia offered to the petitioner to
come to Bangkok, and from there to proceed to Dubai, it appears that on
account of paucity of accommodation, Ajey Lohia suggested that she may
join the family at Dubai, instead.
43. The petitioner then proceeded to Dubai and, it appears that there was
some incident on account whereof the petitioner returned to New Delhi
(India) without the minor child. While the petitioner claims that she was not
allowed to enter the house of Ajey Lohia in Dubai and to meet, much less to
take the child, the respondents deny this allegation. In these proceedings we
are not getting into the said issue, as it is even otherwise not considered
necessary for us to do so, considering the scope of the present petition.
44. A perusal of Section 6(a) of the HMG Act shows that the legislature
has considered it appropriate, that in respect of a minor child, who has not
completed the age of five years, the custody should normally be with the
mother. The reason for the same is not difficult to fathom. The reason,
simply put, is that normally, a mother is biologically and psychologically
attuned to look after and protect the child. It comes naturally to the mother
to be sensitive to the needs of the minor child – be it food, hygiene, clothing,
comfort and protection. This is not to say that the father of a minor child
cannot have the same level of concern or sensitivity.
45. Respondent No.4 has claimed before us, and expressed himself with
sincerity and honesty – when he claims that from the time when Baby Raina
was born, he has been looking after her and mothering her in every way.
However, that does not lead to the conclusion that the petitioner has taken a
back seat in this regard. The correspondence that the petitioner has
apparently had with the pediatrician Dr. Rajiv Seth from 29.03.2017
onwards, till January 2018, shows that the petitioner was taking interest in
addressing the medical needs of the child since she was fixing up the
appointments with the doctor. The petitioner evidently, was coordinating
with regard to the vaccinations to be given to the child from time to time.
46. The conversation between the petitioner and respondent No. 4 over
Whatsapp also shows that the petitioner has shown her concern for the
welfare and upbringing of the minor child. It appears that she did have
arguments with respondent No. 4 with regard to the manner in which the
child was – according to her, being pampered and the same was not the best
way to bring up the child. We do not wish to get into the issue whether the
concerns flagged by the petitioner in her conversation with respondent No. 4
are well founded, or not. However, they do show that the petitioner indeed
had concern for the minor child. The conversations between the petitioner
and Ajey Lohia also show that the petitioner – being the mother, was
missing her child and wanted to be with her when Ajey Lohia had taken the
child to Bangkok. Thus, it appears to us that the petitioner being the mother
of the minor child has concern for her child, and loves the child like any
mother naturally would. It also appears to us that she has been taking care
of the child.
47. Respondent No. 4 has, however, raised other concerns, namely, that
the petitioner is a psychiatric patient and taking treatment for depression; of
the petitioner being very busy professionally; of her also being a socialite; of
the petitioner indulging in partying routinely on a daily basis and consuming
alcohol and returning late in an inebriated condition; of the petitioner having
liaisons and an extra-marital affair; of the petitioner not having any other
family member at home to take care of the minor child while she is away at
work or at social gatherings, since her parents and brothers are all settled in
USA and permanent residents of USA.
48. In our view, the professional and social obligations and activities of
the mother need not necessarily have an adverse impact on the upbringing
and safety of the minor child. In today‟s day and age, women are actively
pursuing their professions and avocations. They are also socializing as their
peers, friends, family and colleagues. That does not mean that they are
necessarily failing in performance of their maternal obligations. In fact,
working women are, by and large, having to put in extra time and effort to
keep both ends up, and they are doing it successfully. The child is an infant.
At this age, the child has little understanding of the actions and conduct of
the parents, particularly, those acts and conduct which take place outside the
child‟s environment.
49. Learned counsel for the petitioner drew our attention to a judgment of
a learned Single Judge of this Court (Madan Lokur, J – as his Lordship then
was) in Pavan Kumar Jha vs. Sapna Moudgil Jha, MANU/DE/1136/2004,
decided on 10.11.2004. In this case the allegation of the father of the child
was that the child had seen his mother indulging in a sexual act with another
man when the child was only two years old, and that he had vivid memories
of the same, even when he attained the age of 6-7 years. The father claimed
that the child was, therefore, reluctant to meet the mother. The father relied
on the opinion of a Consultant Child and Adolescent Psychiatrist, who
opined that the child experienced trauma on re-living those memories and
that it was desirable that the child was not forced to meet the mother for
some time. The mother, however, denied any such incident. It was argued
on behalf of the mother that, in any event, the child could not have
remembered any such alleged adulterous relationship after so many years on
account of infantile amnesia, which makes children forget events, even if,
they indeed witness the same.
50. The Court held that the act of the infant child witnessing the sexual
activity of his mother with another man did not tantamount to “sexual
abuse” as defined in “Gale Encyclopedia of Psychology”, and in a document
obtained from the American Academy of Pediatrics. The Court also did not
agree with the petitioner‟s/father‟s submission that the child was traumatized
on account of his meetings with his mother. The Court further observed;
―In the long run, even if it were assumed that the respondent
had any adulterous relationship, it would be necessary for her
and for Abhinav to come to terms with other realities and
complexities of human relationships. Ideally, both the parents
should make a joint effort to achieve this. Unfortunately, this
does not seem possible in the present case. Therefore, each
parent should at least make an individual effort.‖
51. In the present case, there is only an allegation of the petitioner
indulging in adultery, which is premised on – what is claimed to be, the
WhatsApp communication exchanged between her and one of her lady
friends. The aspects of admissibility of What‟s App conversation; the
weight attached to be such conversations – which is described by learned
counsel for the petitioner as being similar to „Locker Room Talk‟ between
men; and other related issues, would arise for consideration in appropriate
proceedings. In these proceedings, we are not inclined to delve into the
same. Moreover, it is not even the allegation of respondent no. 4 that the
petitioner has already indulged in adultery, much less that she has indulged
in sexual activity in the presence of the minor child. This being the position,
we are not impressed by the said submission of respondent no. 4.
52. It is primarily the home where the child spends her time. On account
of disputes that have arisen between the petitioner and respondent No. 4, the
petitioner has taken a separate premises on rent. Her parents came to live
with her, and till the time when we reserved the judgment, her father was
still continuing to live with her. We also inter-acted with the petitioner in
court and inquired whether she was alive to the undesirability of leaving the
female minor child with only the maids and servants while she was away to
work, or at social gatherings. She has responded by stating that she is very
much alive and conscious of the said position. She stated that her father was
at home when she is away.
53. Our inter-action with the petitioner does not give us the impression
that she is mentally or psychiatrically unstable to look after the minor child
at this stage. The reasons for her seeking help of counselors could be
manifold. It is not uncommon for people to resort to counseling when they
have matrimonial disputes. She has had two miscarriages earlier. In today‟s
day and age, when one is faced with stress originating from different aspects
of life, one may seek professional help from a trained counselor to resolve
one‟s dilemmas, and reduce his or her stress. It is no longer a taboo in our
society to consult a psychotherapist, or a psychiatrist, or a counselor, as it
was in the earlier days. Merely because a person may go for such like
therapy and consultation, it does not follow that the person does not possess
mental equilibrium, or is mentally unsound. Such trained professionals are
becoming more relevant in today‟s day and age, considering the fact that the
families are smaller, and one may not have siblings and other elders in the
family readily available to talk to, and discuss private and personal issues.
54. From the materials placed on record, which we have considered
summarily without going through a trial, it cannot be said that respondent
No. 4 has been able to dislodge the presumption cast by Section 6(a) of the
HMG Act – of the welfare of the minor child in remaining with the
petitioner mother.
55. As noticed hereinabove, we have, by our interim arrangement dated
08.03.2018, devised a mechanism so that the child is able to spend time with
both the parents and both sets of grandparents during the day. Since the
child is only about one year old, and is presently not even going to school or
play school, and the petitioner and respondent No. 4 and his parents are
residing in the same vicinity in Vasant Vihar, she can be easily transported
to and fro and can receive the love, affection, care and attention of both the
parents and both sets of grandparents, which, obviously is in her best
interest. This arrangement, in our view, is the best arrangement for the
present. The warring parents have the time to have the issues of custody and
visitation thrashed out in the competent Court, before baby Raina starts
going to school/ play school.
56. Learned counsel for respondent No.4, as well as respondent No. 4 in
his personal inter-action, have submitted that Baby Raina is in the habit of
waking up early in the morning around 6 o‟clock, and it is at that time of the
day when she is most active and playful. Respondent No. 4 has submitted
that when the couple was living together with the child, he would spend that
precious time of the day with the minor child playing with her and bonding
with her. He has submitted that the life style of the petitioner is such that
she wakes up late in the morning around 10 am, and till then the child is
attended to only by the maids. He has, therefore, argued that he should be
granted access to the child during the early hours of the day. In our view, all
such factors and aspect can be placed before the competent Court and the
Court would consider the same, keeping in view the best interest of the
child.
57. Accordingly, we dispose of the present petition by continuing the
arrangement devised by us in our order dated 08.03.2018, as modified by our
order dated 13.03.2018. The said arrangement shall continue to remain in
force till so long as it is varied by the competent Family Court in appropriate
proceedings that have been filed by the respondent-father to seek custody
and visitation rights in respect of the minor child. We make it clear that we
have assessed the submissions of the parties only summarily, and the
competent court shall be free to arrive at his own conclusions – both at the
interim stage, and at the final stage, after considering the materials placed
before it, and the submissions advanced before it by the parties. It also goes
without saying that in case of change of any circumstance, it shall be open to
the parties to bring the same to the notice of the competent Family Court and
the same shall be considered by the concerned Court while passing further
orders.
58. The petition stands disposed of in the aforesaid terms.
(VIPIN SANGHI)
JUDGE
(P. S. TEJI)
JUDGE
MAY 01, 2018
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