Custody of a child = writ is maintainable ? = whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of 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 present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondentfather is a natural guardian of the minor child and is having the legal right to claim the custody of the child. = Under Section 6 of the Act, the father is the natural guardian and he is entitled to the custody of the child and the appellants have no legal right to the custody of the child.=The child is only 1½ years old and the child was with the father for about four months after her birth. If no custody is granted to the first respondent, the court would be depriving both the child and the father of each other’s love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With the passage of time, she might develop more bonding with the appellants and after some time, she may be reluctant to go to her father in which case, the first respondent might be completely deprived of her child’s love and affection. Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, we find that the High Court was right in holding that the welfare of the child will be best served by handing over the custody of the child to the first respondent.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 838 OF 2019
(Arising out of SLP (Crl.) No. 1675 of 2019)
TEJASWINI GAUD AND ORS. …Appellants
VERSUS
SHEKHAR JAGDISH PRASAD TEWARI
AND OTHERS …Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.

  1. This appeal arises out of the judgment dated 06.02.2019
    passed by the High Court of Bombay in Crl.W.P. No. 5214 of 2018
    in and by which the High Court held that the first respondentfather of the child being the surviving parent and in the interest of
    welfare of the child, the custody of the child must be handed over
    to the first respondent-father and issued writ of habeas corpus
    directing the appellants to handover the custody of the minor child
    to respondent No.1-father of the child.
    1
  2. Brief facts of the case are that marriage of respondent No.1
    was solemnized with Zelam on 28-05-2006. During the fifth month
    of her pregnancy i.e. in May 2017, Zelam was detected with breast
    cancer. Respondent No.1 and Zelam were blessed with a girl child
    named Shikha on 14-08-2017. While Zelam was undergoing
    treatment, child Shikha was with her father respondent No.1 till
    November, 2017. Unfortunately, on 29-11-2017, respondent No. 1
    was suddenly hospitalised and he was diagnosed with
    Tuberculosis Meningitis and Pulmonary Tuberculosis. While he
    was undergoing treatment, appellant No.1-Tejaswini Gaud – one of
    the two sisters of Zelam and appellant No.4-Dr. Pradeep Gaud who
    is the husband of Tejaswini, took Zelam along with Shikha to their
    residence at Mahim, Mumbai for continuation of the treatment.
    Later, in June 2018, Zelam was shifted to her paternal home along
    with Shikha in Pune i.e. residence of appellant No.3-Samir
    Pardeshi, brother of Zelam. In July 2018, they were again shifted to
    the house of appellant No.1 in Mumbai. On 17-10-2018, Zelam
    succumbed to her illness. Child Shikha continued to be in the
    custody of the appellants in Pune at the residence of appellant
    No.3 till 17-11-2018. Respondent No.1-father was denied the
    custody of child and on 17-11-2018, he gave a complaint to
    2
    Dattawadi Police Station, Pune. Thereafter, respondent No.1-father
    approached the High Court by filing a writ petition seeking custody
    of minor child Shikha. Respondent No.1-father is a post-graduate
    in Management and is working as a Principal Consultant with
    Wipro Limited.
  3. The High Court held that respondent No.1-father, the only
    surviving parent of the child is entitled to the custody of the child
    and the child needs love, care and affection of the father. The
    High Court took into account that respondent No.1 was
    hospitalised for a serious ailment and in those circumstances, the
    appellants have looked after the child and in the interest and
    welfare of the child, it is just and proper that the custody of the
    child is handed over back to the first respondent. However, the
    High Court observed that the efforts put in by the appellants in
    taking care of the child has to be recognized and so the High
    Court granted appellants No.2 and 3 access to the child.
  4. The appellants contend that the writ of habeas corpus cannot
    be issued when efficacious alternative remedy is available to
    respondent No. 1 under Hindu Minority and Guardianship Act,
  5. It was submitted that the child was handed over to the
    appellants by the ailing mother of the child who has expressed her
    3
    wish that they should take care of the child and therefore, it is not a
    fit case for issuance of writ of habeas corpus which is issued only
    in cases of illegal detention. It is also their contention that the
    question of custody of the minor child is to be decided not on
    consideration of the legal rights of the parties; but on the sole and
    predominant criterion of what would best serve the interest and
    welfare of the minor and, as such, the appellants who are taking
    care of the child since more than a year, they alone would be
    entitled to have the custody of the child in preference to
    respondent No.1-father of the child.
  6. Learned counsel appearing for the appellants submitted that
    though the first respondent-father is a natural guardian of the
    minor child Shikha and has a preferential right to claim the
    custody of the minor child, but in matters concerning the custody
    of a minor child, the paramount consideration is the welfare of the
    minor and not the legal right of a particular party, in this case, the
    father. It was further submitted that Section 6 of the Hindu
    Minority and Guardianship Act, 1956 cannot supersede the
    dominant consideration as to what is conducive to the welfare of
    the minor child and the welfare of the minor child has to be the
    4
    sole consideration. In support of his contention, the learned
    counsel for the appellants has placed reliance upon:-
    (i) Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3
    SCC 92;
    Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14;
    G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online
    Mad 472 : AIR 2005 Mad 452;
    L. Chandran v. Mrs. Venkatalakshmi & Another 1980 SCC Online
    AP 80 : AIR 1981 AP 1;
    Ravi Kant Keshri & Another v. Krishna Kumar Gupta and Others
    1992 SCC Online All 548 : AIR 1993 All 230;
    Suriez v. M. Abdul Khader and Others 2017 SCC Online Kar 4935;
    Murari Lal Sharma and Another v. State of West Bengal and
    Others 2013 SCC Online 23045 : AIR 2013 Cal 213;
    R. Suresh Kumar v. K.A. Kavathi and Others
    MANU/TN/8529/2006;
    Athar Hussain v. Syed Siraj Ahmed and Others (2010) 2 SCC
    654;
    Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413;
    Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker
    Joshi (1992) 3 SCC 573;
    Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42;
    Baby Sarojam v. S. Vijayakrishnan Nair AIR 1992 Ker 277;
    Abhimanyu Poria v. Rajbir Singh and Others 2018 SCC Online
    Del 6661 : AIR 2018 Del 127;
    A.V. Venkatakrishnaiah and Another v. S.A. Sathyakumar 1978
    SCC Online Kar 241 : AIR 1978 Kar 220.
    5
  7. Per contra, the learned counsel appearing for the first
    respondent has submitted that in view of Section 6 of the Hindu
    Minority and Guardianship Act, 1956, father has the paramount
    right to the custody of the children and he cannot be deprived of
    the custody of the minor child unless it is shown that he is unfit to
    be her guardian. The learned counsel submitted that in view of
    his illness and the illness of the mother Zelam, mother and child
    happened to be in Mumbai and Pune and considering the welfare
    of the child, she had to be handed over to the first respondent. It
    was further submitted that father being a natural guardian as per
    the provisions of Section 6 of the Hindu Minority and
    Guardianship Act, 1956, the appellants have no legal right for the
    custody of the infant and the High Court rightly ordered the
    custody of the child to respondent No.1. In support of his
    contention, learned counsel for the respondents inter alia placed
    reliance upon number of judgments:-
    (i) Gohar Begam v. Suggi @ Nazma Begam and Others
    AIR 1960 SC 93;
    (ii) Smt. Manju Malini Sheshachalam D/o Mr. R.
    Sheshachalam v. Vijay Thirugnanam S/o
    Thivugnanam & Others 2018 SCC Online Kar 621;
    (iii) Amol Ramesh Pawar v. State of Maharashtra &
    Others 2014 SCC Online Bom 280;
    6
    (iv) Marggarate Maria Pulparampil Nee Feldman v. Dr.
    Chacko Pulparampil and Others AIR 1970 Ker 1
    (FB);
    (v) Thirumalai Kumaran v. Union Territory of Dadra and
    Nagar Haveli 2003 (2) Mh.L.J.;
    (vi) Capt. Dushyant Somal v. Smt. Sushma Somal &
    Others (1981) 2 SCC 277;
    (vii) Syed Saleemuddin v. Dr. Rukhsana and Others
    (2001) 5 SCC 247;
    (viii) Nirmaljit Kaur (2) v. State of Punjab and Otherrs
    (2006) 9 SCC 364;
    (ix) Surya Vadanan v. State of Tamil Nadu and Others
    (2015) 5 SCC 450;
    (x) Ruchika Abbi & Anr. v. State (National Capital
    Territory of Delhi) and Another (2016) 16 SCC 764;
    (xi) Kanika Goel v. State of Delhi through Station House
    Officer and Another (2018) 9 SCC 578.
  8. We have carefully considered the rival contentions and
    perused the impugned judgment and various judgments relied
    upon by the parties.
  9. The question falling for consideration is whether in the writ
    of habeas corpus filed by respondent No.1 seeking custody of the
    minor child from the appellants, the High Court was right in
    ordering that the custody of minor child be handed over to
    respondent No.1-father. Further question falling for consideration
    7
    is whether handing over of the custody of the child to respondent
    No.1-father is not conducive to the interest and welfare of the
    minor child.
  10. Section 6 of the Hindu Minority and Guardianship Act, 1956
    enacts as to who can be said to be a natural guardian. As per
    Section 6 of the Act, natural guardian of a Hindu Minor in respect
    of the minor’s person as well as in respect of the minor’s property
    (excluding his or her undivided interest in joint family property) is
    the father, in the case of a boy or an unmarried girl and after him,
    the mother. Father continues to be a natural guardian, unless he
    has ceased to be a Hindu or renounced the world. Section 13 of
    the Act deals with the welfare of a minor. Section 13 stipulates
    that in the appointment or declaration of any person as guardian
    of a Hindu minor by a court, the welfare of the minor shall be the
    paramount consideration. Section 13(2) stipulates that no
    person shall be entitled to the guardianship by virtue of the
    provisions of the Act if the court is of opinion that his or her
    guardianship will not be for the welfare of the minor.
  11. Maintainability of the writ of habeas corpus:- The
    learned counsel for the appellants submitted that the law is wellsettled that in deciding the question of custody of minor, the
    8
    welfare of the minor is of paramount importance and that the
    custody of the minor child by the appellants cannot be said to be
    illegal or improper detention so as to entertain the habeas corpus
    which is an extraordinary remedy and the High Court erred in
    ordering the custody of the minor child be handed over to the first
    respondent-father. Placing reliance on Veena Kapoor1 and
    Sarita Sharma2 and few other cases, the learned counsel for the
    appellants contended that the welfare of children requires a full
    and thorough inquiry and therefore, the High Court should instead
    of allowing the habeas corpus petition, should have directed the
    respondent to initiate appropriate proceedings in the civil court.
    The learned counsel further contended that though the father
    being a natural guardian has a preferential right to the custody of
    the minor child, keeping in view the welfare of the child and the
    facts and circumstances of the case, custody of the child by the
    appellants cannot be said to be illegal or improper detention so as
    to justify invoking extra-ordinary remedy by filing of the habeas
    corpus petition.
  12. Countering this contention, the learned counsel for
    respondent No.1 submitted that in the given facts of the case, the
    1 Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92
    2 Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14
    9
    High Court has the extraordinary power to exercise the
    jurisdiction under Article 226 of the Constitution of India and the
    High Court was right in allowing the habeas corpus petition. The
    learned counsel has placed reliance on Gohar Begum3 and.
    Manju Malini Sheshachalam4
    . Contention of respondent No.1 is
    that as per Section 6 of the Hindu Minority and Guardianship Act,
    respondent No.1, being the father, is the natural guardian and the
    appellants have no authority to retain the custody of the child and
    the refusal to hand over the custody amounts to illegal detention
    of the child and therefore, the writ of habeas corpus was the
    proper remedy available to him to seek redressal.
  13. Writ of habeas corpus is a prerogative process for securing
    the liberty of the subject by affording an effective means of
    immediate release from an illegal or improper detention. The writ
    also extends its influence to restore the custody of a minor to his
    guardian when wrongfully deprived of it. The detention of a minor
    by a person who is not entitled to his legal custody is treated as
    equivalent to illegal detention for the purpose of granting writ,
    directing custody of the minor child. For restoration of the
    custody of a minor from a person who according to the personal
    3 Gohar Begum v. Suggi @ Nazma Begam and others AIR 1960 SC 93
    4 Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam S/o
    Thivugnanam & Others 2018 SCC Online Kar 621
    10
    law, is not his legal or natural guardian, in appropriate cases, the
    writ court has jurisdiction.
  14. In Gohar Begum3 where the mother had, under the
    personal law, the legal right to the custody of her illegitimate
    minor child, the writ was issued. In Gohar Begum3
    , the Supreme
    Court dealt with a petition for habeas corpus for recovery of an
    illegitimate female child. Gohar alleged that Kaniz Begum,
    Gohar’s mother’s sister was allegedly detaining Gohar’s infant
    female child illegally. The Supreme Court took note of the position
    under the Mohammedan Law that the mother of an illegitimate
    female child is entitled to its custody and refusal to restore the
    custody of the child to the mother would result in illegal custody of
    the child. The Supreme Court held that Kaniz having no legal
    right to the custody of the child and her refusal to make over the
    child to the mother resulted in an illegal detention of the child
    within the meaning of Section 491 Cr.P.C. of the old Code. The
    Supreme Court held that the fact that Gohar had a right under the
    Guardians and Wards Act is no justification for denying her right
    under Section 491 Cr.P.C. The Supreme Court observed that
    Gohar Begum, being the natural guardian, is entitled to maintain
    the writ petition and held as under:-
    11
    “7. On these undisputed facts the position in law is perfectly clear. Under
    the Mohammedan law which applies to this case, the appellant is entitled to
    the custody of Anjum who is her illegitimate daughter, no matter who the
    father of Anjum is. The respondent has no legal right whatsoever to the
    custody of the child. Her refusal to make over the child to the appellant
    therefore resulted in an illegal detention of the child within the meaning of
    Section 491. This position is clearly recognised in the English cases
    concerning writs of habeas corpus for the production of infants.
    In Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217 Lord
    Campbell, C.J., said at p. 193:
    “But with respect to a child under guardianship for nurture, the child is
    supposed to be unlawfully imprisoned when unlawfully detained from
    the custody of the guardian; and when delivered to him, the child is
    supposed to be set at liberty.”
    The courts in our country have consistently taken the same view. For
    this purpose the Indian cases hereinafter cited may be referred to. The
    terms of Section 491 would clearly be applicable to the case and the
    appellant entitled to the order she asked.
  15. We therefore think that the learned Judges of the High Court were clearly
    wrong in their view that the child Anjum was not being illegally or improperly
    detained. The learned Judges have not given any reason in support of their
    view and we are clear in our mind that view is unsustainable in law.
    ……..
  16. We further see no reason why the appellant should have been asked to
    proceed under the Guardian and Wards Act for recovering the custody of
    the child. She had of course the right to do so. But she had also a clear right
    to an order for the custody of the child under Section 491 of the Code. The
    fact that she had a right under the Guardians and Wards Act is no
    justification for denying her the right under Section 491. That is well
    established as will appear from the cases hereinafter cited.” (Underlining
    added)
  17. In Veena Kapoor1
    , the issue of custody of child was
    between the natural guardians who were not living together.
    12
    Veena, the mother of the child, filed the habeas corpus petition
    seeking custody of the child from her husband alleging that her
    husband was having illegal custody of the one and a half year old
    child. The Supreme Court directed the District Judge concerned
    to take down evidence, adduced by the parties, and send a report
    to the Supreme Court on the question whether considering the
    interest of the minor child, its mother should be given its custody.
  18. In Rajiv Bhatia5
    , the habeas corpus petition was filed by
    Priyanka, mother of the girl, alleging that her daughter was in
    illegal custody of Rajiv, her husband’s elder brother. Rajiv relied
    on an adoption deed. Priyanka took the plea that it was a
    fraudulent document. The Supreme Court held that the High
    Court was not entitled to examine the legality of the deed of
    adoption and then come to the conclusion one way or the other
    with regard to the custody of the child.
  19. In Manju Malini4 where the mother filed a habeas corpus
    petition seeking custody of her minor child Tanishka from her
    sister and brother-in-law who refused to hand over the child to the
    mother, the Karnataka High Court held as under:-
    “24. The moment respondents 1 and 2 refused to handover the custody of
    minor Tanishka to the petitioner the natural and legal guardian, the
    5 Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525
    13
    continuation of her custody with them becomes illegal detention. Such
    intentional act on the part of respondent Nos.1 and 2 even amounts to the
    offence of kidnapping punishable under S.361 of IPC. Therefore there is no
    merit in the contention that the writ petition is not maintainable and
    respondent Nos.1 and 2 are in legal custody of baby Tanishka.”
  20. 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 issue 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.
  21. In child custody matters, the ordinary remedy lies only under
    the Hindu Minority and Guardianship Act or the Guardians and
    14
    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
    Guardians and Wards Act and the exercise of powers by a writ
    court which is of 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.
  22. In the present case, the appellants are the sisters and
    brother of the mother Zelam who do not have any authority of law
    to have the custody of the minor child. Whereas as per Section 6
    of the Hindu Minority and Guardianship Act, the first respondentfather is a natural guardian of the minor child and is having the
    legal right to claim the custody of the child. The entitlement of
    father to the custody of child is not disputed and the child being a
    15
    minor aged 1½ years cannot express its intelligent preferences.
    Hence, in our considered view, in the facts and circumstances of
    this case, the father, being the natural guardian, was justified in
    invoking the extraordinary remedy seeking custody of the child
    under Article 226 of the Constitution of India.
  23. Custody of the child – removed from foreign countries
    and brought to India:- In a number of judgments, the Supreme
    Court considered the conduct of a summary or elaborate enquiry
    on the question of custody by the court in the country to which the
    child has been removed. In number of decisions, the Supreme
    Court dealt with habeas corpus petition filed either before it under
    Article 32 of the Constitution of India or the correctness of the
    order passed by the High Court in exercise of jurisdiction under
    Article 226 of the Constitution of India on the question of custody
    of the child who had been removed from the foreign countries and
    brought to India and the question of repatriation of the minor
    children to the country from where he/she may have been
    removed by a parent or other person. In number of cases, the
    Supreme Court has taken the view that the High Court may
    invoke the extraordinary jurisdiction to determine the validity of
    the detention. However, the Court has taken view that the order of
    16
    the foreign court must yield to the welfare of the child. After
    referring to various judgments, in Ruchi Majoo6
    , it was held as
    under:-
    “58. Proceedings in the nature of habeas corpus are summary in nature,
    where the legality of the detention of the alleged detenu is examined on the
    basis of affidavits placed by the parties. Even so, nothing prevents the High
    Court from embarking upon a detailed enquiry in cases where the welfare of
    a minor is in question, which is the paramount consideration for the Court
    while exercising its parens patriae jurisdiction. 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.
  24. The Court may also direct repatriation of the minor child to the country
    from where he/she may have been removed by a parent or other person; as
    was directed by this Court in Ravi Chandran (2010) 1 SCC 174 and Shilpa
    Aggarwal (2010) 1 SCC 591 cases or refuse to do so as was the position in
    Sarita Sharma case (2000) 3 SCC 14. What is important is that so long as
    the alleged detenu is within the jurisdiction of the High Court no question of
    its competence to pass appropriate orders arises. The writ court’s
    jurisdiction to make appropriate orders regarding custody arises no sooner
    it is found that the alleged detenu is within its territorial jurisdiction.”
  25. After referring to various judgments and considering the
    principles for issuance of writ of habeas corpus concerning the
    minor child brought to India in violation of the order of the foreign
    court, in Nithya Anand7
    , it was held as under:-
    6 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479
    7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454
    17
    “46. The High Court while dealing with the petition for issuance of a writ of
    habeas corpus concerning a minor child, in a given case, may direct return
    of the child or decline to change the custody of the child keeping in mind all
    the attending facts and circumstances including the settled legal position
    referred to above. Once again, we may hasten to add that the decision of
    the court, in each case, must depend on the totality of the facts and
    circumstances of the case brought before it whilst considering the welfare of
    the child which is of paramount consideration. The order of the foreign court
    must yield to the welfare of the child. Further, the remedy of writ of habeas
    corpus cannot be used for mere enforcement of the directions given by the
    foreign court against a person within its jurisdiction and convert that
    jurisdiction into that of an executing court. Indubitably, the writ petitioner can
    take recourse to such other remedy as may be permissible in law for
    enforcement of the order passed by the foreign court or to resort to any
    other proceedings as may be permissible in law before the Indian Court for
    the custody of the child, if so advised.”
  26. In Sarita Sharma2
    , the tussle over the custody of two minor
    children was between their separated mother and father. The
    Family Court of USA while passing the decree of divorce gave
    custody rights to the father. When the mother flew to India with
    the children, the father approached the High Court by filing a
    habeas corpus petition. The High Court directed the mother to
    handover the custody to the father. The Supreme Court in appeal
    observed that the High Court should instead of allowing the
    habeas corpus petition should have directed the parties to initiate
    appropriate proceedings wherein a thorough enquiry into the
    interest of children could be made.
    18
  27. In the recent decision in Lahari Sakhamuri8
    , this court
    referred to all the judgments regarding the custody of the minor
    children when the parents are non-residents (NRI). We have
    referred to the above judgments relating to custody of the child
    removed from foreign country and brought to India for the sake of
    completion and to point out that there is a significant difference in
    so far the children removed from foreign countries and brought
    into India.
  28. Welfare of the minor child is the paramount
    consideration:- The court while deciding the child custody cases
    is not bound by the mere legal right of the parent or guardian.
    Though the provisions of the special statutes govern the rights of
    the parents or guardians, but the welfare of the minor is the
    supreme consideration in cases concerning custody of the minor
    child. The paramount consideration for the court ought to be child
    interest and welfare of the child.
  29. After referring to number of judgments and observing that
    while dealing with child custody cases, the paramount
    consideration should be the welfare of the child and due weight
    should be given to child’s ordinary comfort, contentment, health,
    8 Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97
    19
    education, intellectual development and favourable surroundings,
    in Nil Ratan Kundu9
    , it was held as under:-
    “49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 the High Court
    observed that it is true that the father is a natural guardian of a minor child
    and therefore has a preferential right to claim the custody of his son, but in
    matters concerning the custody of a minor child, the paramount
    consideration is the welfare of the minor and not the legal right of a
    particular party. Section 6 of the 1956 Act cannot supersede the dominant
    consideration as to what is conducive to the welfare of the minor child. It
    was also observed that keeping in mind the welfare of the child as the sole
    consideration, it would be proper to find out the wishes of the child as to
    with whom he or she wants to live.
  30. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 the
    Court held that custody cases cannot be decided on documents, oral
    evidence or precedents without reference to “human touch”. The human
    touch is the primary one for the welfare of the minor since the other
    materials may be created either by the parties themselves or on the advice
    of counsel to suit their convenience.
  31. In Kamla Devi v. State of H.P. AIR 1987 HP 34 the Court observed:
    “13. … the Court while deciding child custody cases in its inherent and
    general jurisdiction is not bound by the mere legal right of the parent or
    guardian. Though the provisions of the special statutes which govern
    the rights of the parents or guardians may be taken into consideration,
    there is nothing which can stand in the way of the Court exercising its
    parens patriae jurisdiction arising in such cases giving due weight to
    the circumstances such as a child’s ordinary comfort, contentment,
    intellectual, moral and physical development, his health, education and
    general maintenance and the favourable surroundings. These cases
    have to be decided ultimately on the Court’s view of the best interests
    of the child whose welfare requires that he be in custody of one parent
    or the other.”
    9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
    20
  32. In our judgment, the law relating to custody of a child is fairly well settled
    and it is this: in deciding a difficult and complex question as to the custody
    of a minor, a court of law should keep in mind the relevant statutes and the
    rights flowing therefrom. But such cases cannot be decided solely by
    interpreting legal provisions. It is a human problem and is required to be
    solved with human touch. A court while dealing with custody cases, is
    neither bound by statutes nor by strict rules of evidence or procedure nor by
    precedents. In selecting proper guardian of a minor, the paramount
    consideration should be the welfare and well-being of the child. In selecting
    a guardian, the court is exercising parens patriae jurisdiction and is
    expected, nay bound, to give due weight to a child’s ordinary comfort,
    contentment, health, education, intellectual development and favourable
    surroundings. But over and above physical comforts, moral and ethical
    values cannot be ignored. They are equally, or we may say, even more
    important, essential and indispensable considerations. If the minor is old
    enough to form an intelligent preference or judgment, the court must
    consider such preference as well, though the final decision should rest with
    the court as to what is conducive to the welfare of the minor.”
  33. Reliance was placed upon Gaurav Nagpal10, where the
    Supreme Court held as under:-
    “32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed: (Ch p. 148)
    The dominant matter for the consideration of the court is the welfare of
    the child. But the welfare of the child is not to be measured by money
    only nor merely physical comfort. 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. Nor can the tie of
    affection be disregarded.” (emphasis supplied)
    ………
  34. When the court is confronted with conflicting demands made by the
    parents, each time it has to justify the demands. The court has not only to
    look at the issue on legalistic basis, in such matters human angles are
    relevant for deciding those issues. The court then does not give emphasis
    10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42
    21
    on what the parties say, it has to exercise a jurisdiction which is aimed at
    the welfare of the minor. As observed recently in Mausami Moitra Ganguli
    case (2008) 7 SCC 673, the court has to give due weightage to the child’s
    ordinary contentment, health, education, intellectual development and
    favourable surroundings but over and above physical comforts, the moral
    and ethical values have also to be noted. They are equal if not more
    important than the others.
  35. The word “welfare” used in Section 13 of the Act has to be construed
    literally and must be taken in its widest sense. The moral and ethical
    welfare of the child must also weigh with the court as well as its physical
    well-being. Though the provisions of the special statutes which govern the
    rights of the parents or guardians may be taken into consideration, there is
    nothing which can stand in the way of the court exercising its parens patriae
    jurisdiction arising in such cases.
  36. Contending that however legitimate the claims of the parties
    are, they are subject to the interest and welfare of the child, in
    Rosy Jacob11
    , this Court has observed that:-
    “7. .… the principle on which the court should decide the fitness of the
    guardian mainly depends on two factors: (i) the father’s fitness or otherwise
    to be the guardian, and (ii) the interests of the minors.”
    ……..
    “15. …. The children are not mere chattels : nor are they mere play-things
    for their parents. Absolute right of parents over the destinies and the lives of
    their children has, in the modern changed social conditions, yielded to the
    considerations of their welfare as human beings so that they may grow up
    in a normal balanced manner to be useful members of the society and the
    guardian court in case of a dispute between the mother and the father, is
    expected to strike a just and proper balance between the requirements of
    welfare of the minor children and the rights of their respective parents over
    them. The approach of the learned Single Judge, in our view, was correct
    and we agree with him. The Letters Patent Bench on appeal seems to us to
    11 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
    22
    have erred in reversing him on grounds which we are unable to appreciate.”
  37. The learned counsel for the appellants has placed reliance
    upon G. Eva Mary Elezabath12 where the custody of the minor
    child aged one month who had been abandoned by father in
    church premises immediately on death of his wife was in
    question. The custody of the child was accordingly handed over
    to the petitioner thereon who took care of the child for two and
    half years by the Pastor of the Church. The father snatched the
    child after two and a half years from the custody of the petitioner.
    The father of the child who has abandoned the child though a
    natural guardian therefore was declined the custody.
  38. In Kirtikumar Maheshankar Joshi13, the father of the
    children was facing charge under Section 498-A IPC and the
    children expressed their willingness to remain with their maternal
    uncle who was looking after them very well and the children
    expressed their desire not to go with their father. The Supreme
    Court found the children intelligent enough to understand their
    well-being and in the circumstances of the case, handed over the
    custody to the maternal uncle instead of their father.
  39. In the case at hand, the father is the only natural guardian
    12 G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472
    13 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573
    23
    alive and has neither abandoned nor neglected the child. Only
    due to the peculiar circumstances of the case, the child was taken
    care of by the appellants. Therefore, the cases cited by the
    appellants are distinguishable on facts and cannot be applied to
    deny the custody of the child to the father.
  40. The child Shikha went into the custody of the appellants in
    strange and unfortunate situation. Appellants No.1 and 2 are the
    sisters of deceased Zelam. Appellant No.4 is the husband of
    appellant No.1. All three of them reside at Mahim, Mumbai.
    Appellant No.3 is the married brother of Zelam who resides in
    Pune. During the fifth month of her pregnancy, Zelam was
    diagnosed with stage 3/4 breast cancer. Zelam gave birth to child
    Shikha on 14-08-2017. On 29-11-2017, respondent No.1
    collapsed with convulsions due to illness. Upon his collapse, he
    was rushed to hospital where he was diagnosed with
    Tuberculosis Meningitis and Pulmonary Tuberculosis. He was
    kept on ventilator for nearly eight days, during which period,
    appellants took care of Zelam and the child. The first respondent
    had to undergo treatment in different hospitals for a prolonged
    period. From 29-11-2017 to June 2018, Zelam and Shikha stayed
    at the residence of appellant’s in Mumbai. During this period,
    24
    Zelam underwent masectomy surgery. Zelam later relapsed into
    cancer and decided to get treatment from a doctor in Pune and
    therefore, shifted to appellant No.3’s house at Pune with Shikha
    and Zelam passed away on 17-10-2018. After recovering from his
    illness, the respondent visited Pune to seek custody of the child.
    But when they refused to hand over the custody, the father was
    constrained to file the writ petition seeking custody of the child.
    The child Shikha thus went to the custody of the appellants in
    unavoidable conditions. Only the circumstances involving his
    health prevented the father from taking care of the child. Under
    Section 6 of the Act, the father is the natural guardian and he is
    entitled to the custody of the child and the appellants have no
    legal right to the custody of the child. In determining the question
    as to who should be given custody of a minor child, the
    paramount consideration is the `welfare of the child’ and not rights
    of the parents under a statute for the time being in force.
  41. As observed in Rosy Jacob11 earlier, the father’s fitness has
    to be considered, determined and weighed predominantly in
    terms of the welfare of his minor children in the context of all the
    relevant circumstances. The welfare of the child shall include
    various factors like ethical upbringing, economic well-being of the
    25
    guardian, child’s ordinary comfort, contentment, health, education
    etc. The child Shikha lost her mother when she was just fourteen
    months and is now being deprived from the love of her father for
    no valid reason. As pointed out by the High Court, the father is a
    highly educated person and is working in a reputed position. His
    economic condition is stable.
  42. The welfare of the child has to be determined owing to the
    facts and circumstances of each case and the court cannot take a
    pedantic approach. In the present case, the first respondent has
    neither abandoned the child nor has deprived the child of a right
    to his love and affection. The circumstances were such that due
    to illness of the parents, the appellants had to take care of the
    child for some time. Merely because, the appellants being the
    relatives took care of the child for some time, they cannot retain
    the custody of the child. It is not the case of the appellants that
    the first respondent is unfit to take care of the child except
    contending that he has no female support to take care of the
    child. The first respondent is fully recovered from his illness and
    is now healthy and having the support of his mother and is able to
    take care of the child.
  43. The appellants submit that handing over of the child to the
    26
    first respondent would adversely affect her and that the custody
    can be handed over after a few years. The child is only 1½ years
    old and the child was with the father for about four months after
    her birth. If no custody is granted to the first respondent, the
    court would be depriving both the child and the father of each
    other’s love and affection to which they are entitled. As the child
    is in tender age i.e. 1½ years, her choice cannot be ascertained
    at this stage. With the passage of time, she might develop more
    bonding with the appellants and after some time, she may be
    reluctant to go to her father in which case, the first respondent
    might be completely deprived of her child’s love and affection.
    Keeping in view the welfare of the child and the right of the father
    to have her custody and after consideration of all the facts and
    circumstances of the case, we find that the High Court was right
    in holding that the welfare of the child will be best served by
    handing over the custody of the child to the first respondent.
  44. Taking away the child from the custody of the appellants and
    handing over the custody of the child to the first respondent might
    cause some problem initially; but, in our view, that will be
    neutralized with the passage of time. However, till the child is
    settled down in the atmosphere of the first respondent-father’s
    27
    house, the appellants No.2 and 3 shall have access to the child
    initially for a period of three months for the entire day i.e. 08.00
    AM to 06.00 PM at the residence of the first respondent. The first
    respondent shall ensure the comfort of appellants No.2 and 3
    during such time of their stay in his house. After three months, the
    appellants No.2 and 3 shall visit the child at the first respondent’s
    house from 10.00 AM to 04.00 PM on Saturdays and Sundays.
    After the child completes four years, the appellants No.2 and 3
    are permitted to take the child on every Saturday and Sunday
    from the residence of the father from 11.00 AM to 05.00 PM and
    shall hand over the custody of the child back to the first
    respondent-father before 05.00 PM. For any further modification
    of the visitation rights, either parties are at liberty to approach the
    High Court.
  45. The impugned judgment of the High Court dated 06.02.2019
    in Crl.W.P. No. 5214 of 2018 is affirmed subject to the above
    directions and observations. The appellants shall hand over the
    custody of the child to the first respondent-father on 10.05.2019
    at 10.00 AM at the residence of the first respondent. Keeping in
    view the interest of the child, both parties shall co-operate with
    28
    each other in complying with the directions of the Court. This
    appeal is accordingly disposed of.
    ……………………….J.
    [R. BANUMATHI]
    ………………………….J.
    [R. SUBHASH REDDY]
    New Delhi;
    May 06, 2019
    29