In a latest, landmark and laudable judgment titled Shaurya Gautam (Minor) and another vs. State of UP and 4 others in Habeas Corpus Petition No. 140 of 2020 delivered on November 10, 2020, the Allahabad High Court refused to grant the custody of two minor children to their father, who is accused of killing his wife. The Bench of Justice JJ Munir also refused to grant visitation rights to the accused father to meet the children. The Bench also laid down in no uncertain terms that the man accused of killing wife is not entitled to custody of children as long as he is not acquitted by a competent court. Very rightly so!

To start with, the ball is set rolling first and foremost in para 1 of this notable judgment wherein it is laid forth that, Awadhesh Gautam has instituted this petition for a writ of habeas corpus, on behalf of his two minor children – Shaurya Gautam and Km. Dishi Gautam. He prays that a writ, order or direction in the nature of habeas corpus may be issued by this Court, ordering Smt. Brahma Devi Tiwari, respondent no. 4 and Sri Braddhanand Bal Ashram, Arya Samaj Jama Wala, Tilak Road, Dehradun, Uttarakhand, respondent no. 5, to produce the two minor children-detenues before this Court and upon production, they be ordered to be set at liberty in the manner that the minors be given into the father's custody.

While elaborating further on the progress in this case, it is then envisaged in para 2 that, A rule nisi was initially granted on 13.02.2020, but remained uncomplied with, on account of disruption of judicial work in the wake of Covid-19 pandemic. Nevertheless, Mr. Pankaj Kumar Tyagi, Advocate, put in appearance on 08.10.2020 and sought time to comply with the rule nisi. Time was granted, fixing a date for return on 15.10.2020. On 15.10.2020, the rule nisi was again not complied with. In the circumstances, the petition was formally admitted to hearing, with Mr. Anurag Dubey waiving service on behalf of the fourth respondent. The Superintendent of Police, Hathras, was ordered to cause the two detenues to be produced before the Court on 03.11.2020 at 02:00 p.m.

The Superintendent of Police, Hathras, was directed to seek cooperation from his counterpart in District Dehradun, Uttarakhand, in order to enforce the rule.
As a corollary, it is then unfolded in para 3 that,:
In compliance with the rule, the minors were produced before the Court on 03.11.2020. This Court has interacted with the elder of the two minors, Shaurya Gautam, besides the minors' grandmother (maternal) Smt. Brahma Devi Tiwari. The Court also spoke to the minors' aunt (mausi) Smt. Uma Rawat, as also Awadhesh Gautam, the father, who has brought this petition. This Court has perused the writ petition and the counter affidavit filed on behalf of the fourth respondent.

While dwelling on the nitty-gritty of this case, on the one hand, it is then stated in para 5 that:
It appears that this issue about the minors' custody has arisen in the context of Awadhesh Gautam's wife and the minors' mother, Poonam Gautam, dying an unnatural death, regarding which, Awadhesh Gautam and four others of his family were reported to the police by the fourth respondent, charging them with murder and destruction of evidence. A First Information Report dated 20.09.2017, giving rise to Case Crime No. 238 of 2017, under Sections 147, 302, 201 of the Indian Penal Code, 1860 (hereinafter referred to as I.P.C.),

Police Station – Sahpau, District – Hathras, was registered. It is alleged in the writ petition that Shaurya Gautam and Km. Dishi Gautam were forcibly taken away by respondent no. 4, when Awadhesh Gautam was sent to jail, in connection with the crime last mentioned. It is also mentioned that he was admitted to bail by an order of this Court dated 15.11.2019 passed in Criminal Misc. Bail Application No. 5179 of 2019. Upon his release from jail, he approached the fourth respondent. A request was made to permit him to meet the children. He discovered there that his children have been lodged in Sri Braddhanand Bal Ashram, Uttarakhand.

He claims to have met his children there. The children, it is claimed by Awadhesh Gautam, asked him to take them away with him. They stated that their grandmother (mother's mother) was not likeable and she had left them alone with the ashram, wherefrom they wished emancipation. It is also asserted that he produced documents before the ashram authorities to show that he was the minors' father, and requested them to hand him over custody of the minor children. It is asserted that the ashram, respondent no. 5, refused to release the children.

On the other hand, it is then pointed out in para 6 that,:
These facts have been strongly controverted in the counter affidavit filed by respondent no. 4. It is denied that Shaurya Gautam and Km. Dishi Gautam were forcibly removed from Awadhesh's custody. Rather, the two minors had been placed in the care of Awadhesh's brother, Neeraj Gautam. It must be remarked that Neeraj Gautam does not appear to be a brother of Awadhesh's, but a cousin or relative. It was Neeraj Gautam who handed over custody of the two minors to the fourth respondent, their maternal grandmother, in the presence of the Station House Officer, Police Station – Sahpau, District – Hathras. A photocopy of the aforesaid memo, albeit undated, is annexed to the counter affidavit as C.A.-3. It is asserted that the grandmother's custody cannot, therefore, be termed as unlawful. The fourth respondent has said in paragraph 12 of the counter affidavit that Awadhesh Gautam has murdered her daughter and she fears for the minors' life, if they were placed in his custody.

It is worth noting that it is then brought out in para 7 that, Apart from the said stand, it is submitted that the fourth respondent's custody, being not outrightly unlawful, the father's remedy lies in instituting proceedings to seek the minor's custody before the court of competent jurisdiction, under the Guardians and Wards Act, 1890 (hereinafter referred to as Act, 1890). It is pointed out that Dinesh Gautam, Awadhesh's brother, has moved the Principal Judge, Family Court, Hathras, under Section 9/10 of Act, 1890, with a prayer that he be appointed the minors' guardian and their custody ordered to be handed over to him. This application has been instituted on 25.07.2019, where summonses were issued on 21.10.2019, returnable on 26.11.2019. The said application is still pending. It is urged that this petition, therefore, for a writ of habeas corpus, is not maintainable.

Truth be told, it is then brought to light in para 10 that, More recently, the issue engaged the attention of their Lordships of the Supreme Court in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others [(2019) 7 SCC 42]. In Tejaswini Gaud (supra), it was held thus:
19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court.

Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issuer in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardian and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardian and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

In the more immediate context, Justice Munir while citing a latest and relevant case law then points out in para 11 that, The Supreme Court still later, considered the question in Yashita Sahu v. State of Rajasthan and Others [(2020) 3 SCC 67], where it was held:
10. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw, Nithya Anand Raghavan v. State (NCT of Delhi) and Lahari Sakhamuri v. Sobhan Kodali among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable.

To put things in perspective, it is then made clear in para 12 that, Here, the custody of the minors in the hands of the fourth respondent cannot be termed unlawful. The fourth respondent is the minors' grandmother. She has been given custody of the minors by Neeraj Gautam, the cousin or relative of Awadhesh's, in the presence of the Station House Officer, Police Station – Sahpau, District – Hathras, who had custody of the children after Awadhesh's arrest. Still, Awadhesh could say that being the natural guardian of the two minors, he has a right to seek their custody from the grandmother. It is precisely this right which Awadhesh asserts, by virtue of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as Act, 1956).

He says he is the sole natural surviving guardian, and therefore, entitled to the minors' custody. It is, no doubt, true that Awadhesh is the minor's natural guardian under Section 6(a) of Act, 1956, but the issue about the minors' custody is not so much about the right of one who claims it, as it is about the minors' welfare. It is universally accepted for a principle in all matters, where questions relating to appointment or declaration of a guardian arise, or a claim is made to the minor's custody that it is the minor's welfare that is of paramount importance. This principle is engrafted in Section 13 (2) of Act, 1956 and also under Section 17 of Act, 1890. If it could be shown, therefore, ex-facie, that the minors' welfare is best secured in Awadhesh's hands, this Court would grant immediate custody to the father.

Here, however, that does not appear to be the case. The father is an accused. The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best. The principle governing custody of minor children, apart from other issues, fell for consideration of the Supreme Court in Nil Ratan Kundu and Another v. Abhijit Kundu [(2008) 9 SCC 413]. We ought to know that the bottomline of this case is that in selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. The wishes of the minor ought to be taken into consideration where the minor is of an age that he/she can express his/her intelligent choice as has been underscored in para 14 also.

It would be pertinent to mention here that it is then stated in para 14 that, It was also emphasized in Nil Ratan Kundu that wishes of the minor ought to be taken into consideration, where the minor is of an age that he can express his/her intelligent choice. This is a principle embodied in Section 17(3) of Act, 1890. Bearing in mind these facts, this Court carefully interacted with the elder of the two minors, that is to say, Shaurya Gautam.

He is a 10-year old boy and fairly intelligent. He informed the Court that he and his sister stay at Sri Braddhanand Bal Ashram, but he is not at all disturbed about the fact that his maternal grandmother has placed him and his sister there. He also told the Court that there is a school, which he and his sister attend. The grandmother (nani) comes over to meet Shaurya and his sister. He is emphatic that he does not wish to go back to his father or stay with him. On being asked the reason, he says that he fears for his life. He also said that he wishes to stay at the hostel.

During the course of conversation, the child emotionally broke down and wept. He insisted upon staying with the hostel and refused to go back to his father. Smt. Brahma Devi Tiwari, the minor's grandmother, told the Court that she stayed alone. Her daughter and son-in-law live close by. On being asked why she does not house the children in her home, she said that she is fearful of their father. He would kidnap both of them and get her framed in a false case. It is for the said reason that she has housed the two children in the ashram.

The minors' aunt, Smt. Uma Rawat, told the Court that she is a housewife. Her husband is an engineer in a US-based firm, domiciled in Dehradun. She also reiterated that they do not keep the children with them, because the father would get them implicated in some false case. The father, on being asked, denied these allegations and said that he never threatened his in-laws.

More damningly, it is then pointed out in para 15 that, This Court has looked into the allegations in the First Information Report, which shows that the father is facing trial on a charge of murder of his wife. The First Information Report indicates that his wife had called her mother on 17.09.2017 that there was a conspiracy afoot, where she could be crushed to death under the wheels of a tractor. Later on, she was found dead near Jalesar Road, portraying it as an accident. At least, that is the case in the First Information Report. The postmortem report shows crush injuries, from the skull to the upper abdomen. Awadhesh Gautam has said in the petition that his wife met an unnatural death, due to accidental burn injuries. This does appear to be the case.

For the sake of clarification, it is then laid bare in para 16 that, This Court does not consider it appropriate to say anything more about the issue. Whatever has been remarked hereinabove, is only to fathom the nature of the allegations against Awadhesh Gautam. It is, in no way, an expression of opinion about the criminal charges against him. The totality of the circumstances on record show that unless acquitted, it would not be appropriate to place the two minor children in their father's custody. It is all the more so as the elder of the two minors, who can express an intelligent preference about the guardian he would like to be with, has ruled out the father.

He is also fearful of the father. It is also true that the minors have been placed in the care of an ashram, but they do not appear to be neglected in the matter of their education. It is not, indeed, an ideal situation about the minors' welfare to be placed in institutional care where the grandmother and the aunt are around in the same town. But the fears expressed by the grandmother, who is an old woman and the aunt, do not appear to be entirely unfounded. Also, the grandmother is in touch with the minors, as Shaurya Gautam informed us. She pays them regular visit and her caring hand is always there.

Most crucially, it is then laid down in para 17 that, In the overall circumstances of the case, this Court does not think that Awadhesh Gautam is entitled to the minor's custody, at least at this stage, when he is facing criminal charges. If and when he is acquitted and the children, still minors, it would be open to him to make an appropriate application, seeking their custody to the court of competent jurisdiction, under the Act, 1890, which shall be decided in accordance to the circumstances then obtaining, without being influenced by anything said here.

Now coming to the concluding paras, it is laid down in para 18 that, In the result, this petition fails and stands dismissed. Finally, it is then held in the last para 19 that, In totality of the circumstances obtaining for the present, this Court does not find it appropriate to grant any visitation rights to Awadhesh Gautam.

In view of the aforesaid, there can be no two opinions that the Allahabad high Court in this noteworthy case has flatly refused to consider any claim of petitioner Awadhesh Gautam to minor children's custody till he is facing criminal charges. In other words, his claim can be considered afresh only when he is acquitted of the serious charges by a competent court and then it would certainly be open to him to make an appropriate application duly as pointed out in para 17 hereinabove which shall be decided in accordance with law and not anything else! Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkehra, Meerut – 250001, Uttar Pradesh.