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Allahabad High Court dismisses woman’s habeas corpus plea for child staying with his father

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The Allahabad High Court has made an important observation in view of the ongoing estrangement between a couple from Etawah.

The Court said that in a case of parental conflict, a child may be affected by relationship distress and may develop loyalty conflict and parental alienation, therefore, parents are advised to settle their differences to fulfill the wish of child.

A single-judge bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Habeas Corpus Petition filed by corpus through his mother.

The corpus, a seven-year-old boy, has approached the Court through his mother, Ashi Verma, alleging that the boy was kidnapped by her husband, Gaurav Verma (Respondent-3) on 02.06.2022 taking advantage of good gesture shown by mother of the corpus to allow him to meet the child.

The father and mother of Respondent-3, who are supporting her husband, misbehaved with her when she along with police personnel went to their place to recover the child.

Hence, to recover the child, the present Habeas Corpus petition is filed.

The child is presently staying with his father who appeared before the Court on 16.09.2022 when the Court interacted with him and brief of the same is mentioned in the order dated 16.09.2022.

The relevant part of said order is mentioned herein:

“1. The Corpus (a 7 years old boy) appeared before this Court alongwith his father. The Court itself interacts with boys in a very cordial atmosphere. The boy is in joyable mood and enjoying Court proceedings for the past an hour and responds to informal interaction in a very respectful manner. He answers wisely to some general knowledge questions. The boy has no complaint with his father, though he has some minor issues with his mother and conversation ends with mature observation by Corpus that he wants to live happily along with his mother and father, both and agreed to a suggestion of the Court that he will hold hands of his Mummy and Papa to live happily together as a family.”

The Court said, “Inter-Parental Conflict and Children’s Psychological Development” are now also termed as “Child Affected by Relationship Distress”. It remains an important subject for research scholars and various research papers are available on research related websites which have considered “loyalty conflict”, “parental alienation” etc.

The counsel for the petitioner submitted that father and mother of the child got married on 08.02.2010 and two sons were born out of their wedlock. The eldest son is the corpus, who is seven years old, and younger one is presently residing with mother. It is the case of the mother that she was tortured for many years and even an attempt to murder was also made when she was thrown away from a running train. In this regard, she has lodged an FIR under Sections 498A, 323, 504, 307 IPC.

The Corpus was abducted and tortured. He was forced to work for his father. The family members of husband assaulted her when she went along with Police personnel to recover the Corpus. The mother has also lodged FIR against her husband and family members for attempt to murder, however, it is alleged that Police personnel, under force and influence of opposite parties, have lodged FIR only under Sections 323, 504, 506 IPC, despite she has suffered injuries which were mentioned in medical examination report. She has also filed a criminal case under Section 125 CrPC for maintenance.

Counsel further submitted that the mother of Corpus was forced to sign papers of compromise, on the basis of which police submitted final report and case filed under Section 125 CrPC was also withdrawn.

In support of allegations the mother has made a statement under Section 164 CrPC, however, under the garb of compromise the final report was submitted.

Counsel has also placed reliance on certain photographs that the father-in-law of petitioner had not only assaulted her but also touched her inappropriately and that the Corpus was very happy with the company of his mother, however, father has abducted him and, therefore, Corpus shall be returned back to her mother.

It is also contended that the Corpus has been withdrawn from a very good school, i.e, St Mary’s Convent School and now he has been admitted in a sub-standard school.

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

The Court observed,

Undisputedly, there are counter allegations by mother and father including serious allegation of attempt to murder, giving torture to a minor and even of administering intoxicating substance to Corpus. There are FIRs also wherein investigation is either concluded or at the stage of protest petition. The relationship between father and mother appears to be strained. Presently the younger child is with mother and Corpus, who is the elder child, is with father. Mother, on the one hand, disputing compromise entered before Family Court, being signed under force, but on the other hand, placed heavy reliance on Clause 5 of compromise which provides that mother shall have overall right on both child and in fact by way of this habeas corpus petition she wants to implement or execute the said clause in her favour as her case is that Corpus was kidnapped by his father under the garb of visiting right, which is a clear violation of the conditions of agreement. She has even tried to execute the same with help of Police personnel, however, it was not materialized.

Even otherwise, Police authorities have no business or right to execute a compromise executed in a Court of law in absence of any specific direction by the Court concerned. Both mother and father are natural guardians of their children, therefore, to hold that the Corpus is in illegal custody of his father would not be a correct approach. Both families are residing nearby. Counter allegation of torturing the Corpus cannot be decided in a habeas corpus petition only on the basis of allegations and averments made in respective affidavits. So far as allegation of attempt to murder by in-laws and husband, as alleged by mother, is concerned, the same is subject matter of investigation, therefore, at this stage to take a view by the Court will adversely affect the investigation or proceedings thereafter.

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

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

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

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

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

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

The Court rejected the prayer made in the habeas corpus petition and disposed of with the following directions.

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

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

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

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

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