allahabad high court

Allahabad High Court: In a habeas corpus petition filed by the mother to handover the custody of her minor children and to issue directions to the respondents for making necessary provisions for interaction and conversations between the mother and the minor children immediately and during pendency of the present writ petition by mode of voice and video calls, Shamim Ahmed, J. said that as the mother herself had consented for admission of the children in India, it is clear that the mother was well aware of the custody of children, who are with their father in India, thus it cannot be said that it was an illegal custody / detention.

In this case, the minor children are being deprived of the love and affection of their parents and the parents are not able to interact with their children meaningfully.

The Court said that minor children should not be deprived of the love and affection of both the parents, as deprivation results in a grave phycological impact upon the impressionable and innocent disposition of a child in his formative years.

As per the Court whenever a question arises before a court pertaining to the custody of the minor children, the matter 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 child.

Further, the Court held that the question of custody cannot be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. It is further held that the welfare of the child must be decided on a consideration including the general psychological, spiritual and emotional well-being of the child.

After perusing the decree of divorce, the Court noted that the father has been able to prove the charges of adultery and irreconcilable differences against the wife. Thus, the Court said that this type of situation has a negative impact on the psychological behavior of minor children and is also not in the welfare of the children.

The Court said that the mother by an email, herself consented to get the children admitted to some reputed school in India and that whenever she will be in India, she will visit her children at their father’s place. Further, it is not in dispute that the admission of both the children was done at the school with the consent of the mother, as for this reason she herself has provided her Aadhar Card and Passport copy. Thus, the Court held that the minor children are not under illegal custody of the father and are studying in India with the consent of the mother. Further, the Court advised the mother to approach the correct forum for getting the custody.

The Court gave the following directions:

  • The custody of both the children shall remain with father.

  • Since the mother lives in U.S.A., she is permitted to meet the children during her stay in India in the evening between 6:00 PM to 8:00 PM at the current residence of the father. It is further provided that if she is in abroad, she allowed to have conversation with her children by mobile phone, WhatsApp call or video call during 8.00 p.m to 8.30 p.m. as per Indian Standard Time.

  • If the mother wants to give any gifts on account of love and affection or do anything for the well-being of children, then the father or any of his family members will not make any objection. However, mother shall keep in mind that such things will be given, which are for use and safe for the children’s health.

  • The mother is at liberty to approach the appropriate forum for claiming the custody of the children under the Hindu Minority and Guards Act 1956 or under the Guardians and Wards Act, 1890 as the case may be in accordance with law.

[Mirah Pandey v State of UP, 2023 SCC OnLine All 240, decided on 09-06-2023]

Advocates who appeared in this case :

Counsel for Petitioner: Advocate Manushresth Misra, Advocate Sushil Kumar Singh;

Counsel for Respondent: Government Advocate Manoj Kumar Misra.

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One comment

  • The current ruling via the Allahabad High Court reinforces the precept that infant custody selections ought to no longer be completely decided with the aid of the financial situations of the events involved. This vital selection highlights the want to prioritize the fine hobbies of the toddler above all else, emphasizing elements such as emotional well-being, stability, and a nurturing environment.

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