Writ Petition No. 178 of 2024 · High Court — Writ Petition No. 178 of 2024

Judgment

1. This appeal is directed against the order dated 02.08.2024 passed by learned Single Judge in Habeas Corpus Writ Petition No. 178 of 2024, whereby learned Single Judge, in the petition filed by respondent-father, seeking custody of minor children from the appellant-wife and her parents, noticed the contentions raised on behalf of the mother and State regarding maintainability of the petition and the fact that the petitioner had remedy under the Guardians and Wards Act, 1890 (‘Act, 1890’) or under Hindu Minority and Guardianship Act, 1956 (‘Act, 1956’), further noticed

the contention on behalf of the respondent-father that he will file the petition under the Act, 1890 in accordance with law, but he be given visitation rights to meet his children, based on which learned Single Judge passed the order that till the children attain the age of majority, the husband was allowed to meet the children and talk to them on Mobile, Whatsapp and Video Call in terms of the order and disposed of the writ petition.

2. Feeling aggrieved, the present appeal was filed essentially questioning the grant of visitation rights while not entertaining the petition and relegating the respondent to remedy under the Act, 1890. Further challenge was laid to the direction pertaining to visitation rights till the children attain the age of majority. 2

3. Submissions were made that by passing the said order, the jurisdiction of the competent court under Act, 1890 to pass appropriate orders has been taken away. Further submission have been made that despite indicating that the requisite petition would be filed, and passage of over one year, no such proceedings has been initiated and, therefore, in view of the conduct of the respondent and the nature of the order passed, the order impugned deserves to be set aside.

4. Counsel for the respondents vehemently opposed the submissions. It was submitted that learned Single Judge has only granted limited visitation rights and right to talk to the children on telephone, however, even the said directions are not being followed and the respondent-father is being deprived of meeting the children and talking to them, which is wholly unjustified. Submissions have been made that the respondent, as indicated in the order impugned, would initiate the proceedings under the Act, 1890.

5. It would be noticed that a Coordinate Bench of this Court on

31.08.2024, on noticing that three criminal cases are pending against the respondent and in one case, the allegations are under Section 363 I.P.C., wherein charge-sheet has been filed against the respondent, the order passed by learned Single Judge was varied regarding talking on Mobile, Whatsapp and Video Call and rest of the order was stayed. It was also observed that mother is a natural guardian statutorily of a girl child aged about 3 to 4 years as in the present case, subject to the fact that the welfare of the child is paramount in the matter of custody etc.

6. We have considered the submissions made by counsel for the parties and have perused the material available on record.

7. Learned Single Judge, after noticing the contentions pertaining to availability of alternative remedy and indications made on behalf of the respondent regarding availing the said remedy, inter alia, directed as under: 3 “Accordingly, till the children attains the age of majority, the husband/next friend Nikhil Srivastava is allowed to -

1. Meet the children, namely, Adya and Ina, on every IInd and IVth Sunday between 11.00 a.m. to 2:00 p.m. at the residence of the wife. In case wife changes the residence, she will inform about the same to the father/next friend 15 days prior to the change of the address.

2. Take any gift item including the toys, clothes and other items in respect of love and affection towards the minor children, keeping in mind that the items are not injuries to the health of the minor children.

3. Talk to his minor children on mobile, whatsapp and video-call on every IInd and IVth Wednesday between 7:30 p.m. to 8:00 p.m. With the above observations, this writ petition is disposed of. ”

8. When the matter came up before this Court, the Coordinate Bench of this Court on 31.08.2024, inter alia, passed the order which is in currency and reads as under: “6. Looking into the aforesaid, we provide that as an interim measure the respondent can talk to his minor daughter on Mobile, Whatsapp and Video Call on every second and fourth Wednesday of the month between 07.30 p.m. to 08.00 p.m., but, the other reliefs granted by the Writ Court in the order dated 02.08.2024 shall remain stayed till the next date of listing.

7. The mother shall ensure that if the respondent calls whether by video call or audio call she shall facilitate the same with the girl child and any violation of this order shall be taken seriously by this Court.”

9. It would be seen that learned Single Judge did not find any good reason to entertain the petition in the nature of Habeas Corpus and on an indication made by the respondent regarding availing the remedy under the Act, 1890, on a prayer made, granted visitation rights to meet the children, however, strangely enough, the right was granted qua children, who were aged about 3 and 4 years till they attain the age of majority, effectively taking away the jurisdiction of the competent court under the Act, 1890 to determine the said aspect, based on the evidence to be led by the parties before the said Court, which direction is, in terms, contradictory, whereby on the one hand, the Court did not entertain the petition and on the other hand, granted 4 extraordinary relief till the children attain the age of majority, which direction, to the said extent, cannot be sustained.

10. Apparently, having got the relief to the extent granted by the learned Single Judge, despite passage of over one year, no steps have been taken by the respondent under the Act, 1890, which also clearly reflects the attitude of the respondent and the extent of his intention to seek the custody of the children.

11. A Coordinate Bench of this Court, on finding the fact regarding the pendency of criminal cases, which fact has been confirmed by the learned Addl. Government Advocate, while producing the instructions dated 20.09.2024, restricted the order passed to a limited extent, which appears to be justified looking to the charges and counter charges levelled by the parties in the present proceedings.

12. Consequently, the appeal is partly allowed. The order dated

02.08.2024 passed by learned Single Judge is modified to the extent the same was restricted by Coordinate Bench of this Court in its order dated 31.08.2024, i.e., the respondent can talk to his minor daughters on Mobile, Whatsapp and Video Call on every second and fourth Wednesday of the month between 07.30 p.m. to 08.00 p.m. and the appellants shall ensure that if the respondent calls, whether by Video Call or Audio Call, they shall facilitate the same with the children.

13. It is further provided that even the present direction would remain in force for a period of four months from today and would be subject to and till any order is passed by the competent court under the Act, 1890. In case, no proceedings are initiated by the respondent, at the end of four months, the above order shall also come to an end.

14. We make it clear that the competent court under the Act, 1890 would be free to pass any appropriate order in accordance with law based on the material available before it and would not be influenced or swayed by any of the orders i.e. dated 02.08.2024 passed by 5 learned Single Judge, order dated 31.08.2024 passed during pendency of the present appeal or the order passed today. Order Date :- 22.08.2025 P.Sri. (Jaspreet Singh, J) (Arun Bhansali, CJ)