GAUTAM KUMAR DASversusNCT OF DELHI AND OTHERS

                 [2024] 8 S.C.R. 451 : 2024 INSC 610

                         Gautam Kumar Das
                                 v.
                       NCT of Delhi and Others
                    (Criminal Appeal No. 3447 of 2024)
                              20 August 2024
              [B.R. Gavai* and K.V. Viswanathan, JJ.]

                          Issue for Consideration
       Matter pertains to the grant of custody of the minor child to the
       father, the only natural guardian.

                                 Headnotes†
       Custody – Claim of – Appellant-father, only surviving biological
       parent seeking custody of the minor daughter from the alleged
       unlawful custody of his sister-in-laws – Husband lost his wife
       just ten days after the birth of their daughter and thereafter,
       his father due to Covid-19 – Due to the loss, the father handed
       over the custody of his minor daughter to his sister-in-law as
       an interim arrangement, however, his son who was relatively
       older was with him – Subsequently, on his remarriage, he
       sought custody of his minor daughter, but was refused –
       Father filed petition under the 1890 Act, seeking custody
       of his minor daughter but the case was withdrawn – Father
       then filed habeas corpus petition seeking custody – High
       Court disposed of the petition granting liberty to the parties
       to approach the family court – Correctness:
       Held: In matters of the custody of minor children, the paramount
       welfare of the child is seen – There cannot be any straight-
       jacket formula – Also, no hard and fast rule can be laid down
       as regards the maintainability of the habeas corpus petition in
       the custody matters of minor child – Exercise of jurisdiction by
       the writ court u/Art. 226 or not would depend on the facts and
       circumstances of each case – Merely because of the unfortunate
       circumstances, sister-in-laws were given the temporary custody
       of the minor child to nurture the infant and only because they
       looked after her for few years, the same cannot be a ground
       to deny the custody of the minor child to the appellant-her only
       natural guardian – Subsequently, the appellant remarried – Now,

* Author
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       he and his wife can very well look after the minor girl – Perusal
       of the photographs reveal that the minor child has gelled well
       with the family – Appellant is well educated and employed as
       Government Official in Delhi, having residence in Delhi whereas
       the sister-in-law to whom the custody of the child was handed over
       is residing at a remote village – Appellant apart from taking care
       of his children, can very well provide the best of the education
       facilities to his children – Child, who lost her mother at tender
       age, cannot be deprived of the company of her father and natural
       brother – Even in order to ensure the welfare of the minor child,
       she should live with her natural family – Minor child would get
       adapted to her natural family very well in a short period – Thus,
       impugned judgment and order of the High Court quashed and set
       aside – Sister-in-laws to handover the custody of the minor child,
       however, permitted to meet her at the residence of the appellant
       at the given time – Constitution of India – Guardians and Wards
       Act, 1890. [Paras 11-17]

                               Case Law Cited
       Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and
       Others [2019] 7 SCR 335 : (2019) 7 SCC 42 – relied on.
       Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor (1981) 3
       SCC 92; Nirmala v. Kulwant Singh and Others (2024) SCC OnLine
       758; Athar Hussain v. Syed Siraj Ahmed and Others [2010] 1
       SCR 49 : (2010) 2 SCC 654 – referred to.

                                 List of Acts
       Guardians and Wards Act, 1890; Constitution of India.

                              List of Keywords
       Grant of custody of the minor child to the father-only natural
       guardian; Custody; Unlawful custody; Covid-19; Maintainability of
       the habeas corpus petition in the matters of custody; Welfare of
       the minor child; Natural guardian; Visitation rights.

                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3447
       of 2024
       From the Judgment and Order dated 03.04.2024 of the High Court
       of Delhi at New Delhi in WPCRL No.416 of 2024
[2024] 8 S.C.R.                                                           453

             Gautam Kumar Das v. NCT of Delhi and Others


                         Appearances for Parties
     Saurav Agrawal, Ashish Kumar Tiwari, Anurag Tiwari, Ajay Sharma,
     Sahib Patel, Advs. for the Appellant.
     Hirein Sharma, Sudhir Mendiratta, Saurabh Goel, Aditya Saluja, Ms.
     Vanshika C, Ms. Disha Bhalla, Dhruv Rajpal, Ms. Harshita Sabharwal,
     Ms. Madhumita Bhattacharjee, Ms. Srija Choudhury, Anant, Ms. Sajal
     Bhardwaj, Mukesh Kumar Maroria, Nachiketa Joshi, Siddharth Sinha,
     Santosh Kumar, Aaditya Shankar Dixit, Advs. for the Respondents.
                Judgment / Order of the Supreme Court

                                 Judgment
     B.R. Gavai, J.
1.   Leave granted.
2.   The present appeal challenges the final judgment and order dated 3rd
     April 2024 passed by a Division Bench of the High Court of Delhi in
     Writ Petition (Crl.) No. 416 of 2024, whereby the High Court disposed
     of the petition filed by the appellant, seeking to obtain the custody of
     his minor daughter from the alleged unlawful custody of respondent
     Nos. 5 and 6 (sisters-in-law of the appellant), by granting liberty to
     the parties to approach the family court of competent jurisdiction for
     seeking custody of the child in question.
3.   The facts, in brief, giving rise to the present appeal are as given below:
     3.1 On 27th January 2012, the appellant married one Ms. Subrata
         Das and out of the wedlock two children were born – the first
         child, Master Divyanshu Das, on 11th September 2013, and
         the second child, Ms./Baby Sugandha Das, on 20th April 2021.
     3.2 When their daughter was only 10 days old, the appellant
         unfortunately lost his wife on 30th April 2021, due to Covid-19
         infection. Shortly thereafter tragedy struck the appellant once
         again as he lost his father on 13th May 2021, due to Covid-19
         infection.
     3.3 Grieving the loss of his loved ones, the appellant, took help
         from respondent No. 5, who is his sister-in-law, in taking care
         of his children. The appellant handed over the custody of his
         children to his sister-in-law as an interim/stop-gap solution,
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            to see through the difficult period that he was undergoing on
            account of loss of his wife and father.
       3.4 After some time, the custody of the minor son was given back to
           the appellant, but the custody of the minor daughter was sought
           to be kept by respondent No. 5 on the ground that the girl child
           was still quite young and would require the care and attention
           of a female for few more months. The custody of the minor
           daughter, as a result, continued to be with respondent No. 5.
       3.5 Respondent No. 5, thereafter, started refusing to let the appellant
           meet the minor daughter on one pretext or the other. She also
           took the minor daughter to her maternal home at Belda, West
           Bengal, where custody of the minor daughter was handed over
           to respondent No. 6.
       3.6 The appellant, in the meanwhile, married again in order to
           provide his children with the care and attention of a female. He
           again approached respondent No. 5 to get back the custody of
           his minor daughter, but the same was refused again.
       3.7 Aggrieved by the sequence of events, the appellant on 7th July
           2023, filed a case under Section 10 of the Guardians and Wards
           Act, 1890, being Case No. GP/71/2023 seeking custody of his
           minor daughter. The appellant also filed two complaints, one in
           Delhi and the other one in Belda, West Bengal, but no action
           was taken on them.
       3.8 The appellant, thereafter, on 30th January 2024, filed a Writ
           Petition before the High Court of Delhi being W.P. (Crl.) No. 416
           of 2024 seeking custody of his minor daughter from respondents
           Nos. 5 and 6.
       3.9 Pursuant to the order of the High Court dated 7th February
           2024, the appellant withdrew his case under the Guardians and
           Wards Act. The Division Bench of the High Court, thereafter,
           interacted with the parties and referred the matter to mediation
           to find out a workable solution. Taking into consideration the
           report of the mediator, the Division Bench arrived at an interim
           arrangement for visitation rights. However, vide final judgment
           and order, the High Court disposed of the writ petition by
           granting liberty to the parties to approach the family court of
           competent jurisdiction.
[2024] 8 S.C.R.                                                            455

                Gautam Kumar Das v. NCT of Delhi and Others


      3.10 Aggrieved thereby, the appellant approached this Court. Vide
           order dated 16th April 2024, this Court issued notice and directed
           that the minor daughter shall remain in Delhi. Vide order dated
           17th May 2024, this Court, on a prima facie consideration of
           the facts, was of the view that the appellant has valid grounds
           to claim the custody of his minor daughter. However, before
           arriving at a final conclusion, this Court thought it fit to give
           proper opportunity to the appellant to win over the love and
           affection of his minor daughter and accordingly gave visitation
           rights to the appellant, his second wife and his son. The interim
           arrangement arrived at by this Court has continued till today.
4.    We have heard Shri Saurav Agrawal, learned counsel appearing
      on behalf of the appellant and Shri Hirein Sharma, learned counsel
      appearing on behalf of respondent Nos. 5 and 6.
5.    Shri Agrawal, learned counsel appearing on behalf of the appellant
      submitted that the High Court has grossly erred in dismissing the
      petition. He submitted that the appellant is the only surviving biological
      parent of the minor daughter Sugandha Das. He submitted that the
      appellant is a natural guardian of the minor child Sugandha Das,
      whereas respondent Nos. 5 and 6 are neither the legal guardian nor
      have any legal right or authority over the minor girl Sugandha Das.
      He further submitted that the appellant, who is a natural guardian,
      cannot be made to run from pillar to post to seek custody of his own
      child. He submitted that the view taken by the High Court is contrary
      to the law laid down by this Court in the case of Tejaswini Gaud
      and Others v. Shekhar Jagdish Prasad Tewari and Others.1
6.    Shri Agrawal further submitted that it is also in the interest of the
      minor child Sugandha Das to stay with her father who is stationed in
      Delhi whereas respondent Nos. 5 and 6 are residing in a small village
      Belda in West Bengal. He submitted that the minor child Sugandha
      Das would also be deprived of the company of her biological brother.
7.    Shri Agrawal, relying on various photographs, submitted that the minor
      child Sugandha Das has gelled well with the appellant, his son and
      his wife. The learned counsel therefore pressed for quashing and
      setting aside of the impugned order passed by the High Court with


1    [2019] 7 SCR 335 : (2019) 7 SCC 42 : 2019 INSC 630
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       a direction to the respondents to immediately hand over the custody
       of the minor child Sugandha Das to the appellant.
8.     Shri Sharma, learned counsel appearing on behalf of respondent Nos.
       5 and 6 submitted that the appellant, having withdrawn the petition
       filed under the Guardian and Wards Act, 1890, could not have filed a
       habeas corpus petition before the High Court. It is submitted that the
       appellant and his family members were ill-treating Late Ms. Subrata
       Das, first wife of the appellant. It is submitted that it is the appellant
       who had handed over the custody of the minor child Sugandha Das
       voluntarily to respondent Nos. 5 and 6. In the written submissions,
       various other allegations have also been made by respondent Nos.
       5 and 6 against the appellant. The learned counsel has relied on the
       judgments of this Court in the cases of Dr. (Mrs.) Veena Kapoor
       v. Shri Varinder Kumar Kapoor,2 Nirmala v. Kulwant Singh and
       Others3 and Athar Hussain v. Syed Siraj Ahmed and Others.4
9.     Before we come to the facts of the present case, it would be apposite
       to refer to the observations of this Court in the case of Tejaswini
       Gaud (supra), wherein this Court was considering almost similar facts
       as have arisen in the present case. In the said case also, after the
       marriage, the wife was detected with breast cancer and the husband
       had fallen ill with Tuberculosis Meningitis and Pulmonary Tuberculosis.
       While the husband was undergoing treatment, one of the sisters of
       the wife and her husband took the minor child Shikha and her ailing
       mother to their residence at Mumbai. During the treatment, the wife
       succumbed to her illness. The minor child continued to be in the
       custody of the sister of the wife and her husband. Since the father
       was denied the custody of the minor child, he approached the High
       Court by way of writ petition seeking writ of habeas corpus. The
       High Court allowed the petition and directed the custody of the minor
       child to be handed over to the husband. Being aggrieved thereby,
       the sister of the wife and her husband approached this Court. Before
       this Court, an objection was taken to the very tenability of the petition
       of habeas corpus filed under Article 226 of the Constitution of India.
       Rejecting the said argument, this Court observed thus:



2    (1981) 3 SCC 92
3    2024 SCC OnLine 758 : 2024 INSC 370
4    [2010] 1 SCR 49 : (2010) 2 SCC 654 : 2010 INSC 7
[2024] 8 S.C.R.                                                             457

             Gautam Kumar Das v. NCT of Delhi and Others


           “21. 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 respondent father 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 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.”
10. In the said case, after considering the earlier pronouncements, this
    Court further observed thus:
           “34. As observed in Rosy Jacob [Rosy Jacob v. Jacob
           A. Chakramakkal (1973) 1 SCC 840] 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 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.
           35. 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
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          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.”
11. Like the facts in the case of Tejaswini Gaud (supra), the facts in
    the present case are also peculiar. The appellant’s wife died due to
    COVID infection and as such, he was forced to give the custody of
    the minor child Sugandha Das to respondent Nos. 5 and 6, who are
    the sisters of the deceased wife. Looking at the very tender age of
    the child Sugandha Das at that time, the appellant could not have
    looked after her. However, the appellant was looking after his son
    Divyanshu Das, who was relatively older. Subsequently, the appellant
    remarried. Now, he and his wife can very well look after the minor
    girl Sugandha Das. A perusal of the photographs placed on record
    would also reveal that pursuant to the visitation rights granted by
    the High Court and this Court, the minor child has gelled well with
    the family and the family of four appears to be happy.
12. Insofar as the fitness of the appellant is concerned, he is well educated
    and currently employed as Assistant General Manager (Class A Officer)
    in Central Warehousing Corporation, Delhi. The appellant’s residence
    is also in Delhi whereas respondent No. 6 to whom the custody of the
    minor child was handed over to by respondent No. 5 is residing at a
    remote village in West Bengal. Apart from taking care of his children,
    the appellant can very well provide the best of the education facilities
    to his children. The child Sugandha Das, who lost her mother at tender
    age, cannot be deprived of the company of her father and natural
    brother. At the relevant time, the appellant had no other option but to
    look upon the sisters of his deceased wife to nurture his infant child.
13. In our opinion, merely because of the unfortunate circumstances
    faced by the appellant as a result of which, respondent Nos. 5 and
    6 were given the temporary custody of the minor child Sugandha
    Das and only because they looked after her for few years, the same
    cannot be a ground to deny the custody of the minor child to the
    appellant, who is her only natural guardian.
14. Insofar as the allegations made against the appellant by respondent
    Nos. 5 and 6 are concerned, it appears that they have been made
    only as an afterthought, and especially after the appellant started
[2024] 8 S.C.R.                                                     459

                Gautam Kumar Das v. NCT of Delhi and Others


     asserting his claim for the custody of his minor daughter Sugandha
     Das. Insofar as the judgments of this Court on which respondent
     Nos. 5 and 6 have relied upon, we can only say that there cannot
     be any straight-jacket formula in the matters of custody.
15. Recently, this Court, in the case of Nirmala (supra) in paragraph 16
    has also observed that no hard and fast rule can be laid down insofar
    as the maintainability of the habeas corpus petition in the matters
    of custody of minor child is concerned. It has been held that as to
    whether the writ court should exercise its jurisdiction under Article
    226 of the Constitution of India or not will depend on the facts and
    circumstances of each case.
16. However, it is to be noted that a common thread in all the judgments
    concerning the custody of minor children is the paramount welfare
    of the child. As discussed hereinabove, we find that, apart from the
    appellant being the natural guardian, even in order to ensure the
    welfare of the minor child, she should live with her natural family.
    The minor child is of tender age, and she will get adapted to her
    natural family very well in a short period. We are therefore inclined
    to allow the appeal.
17. In the result, we pass the following order:
     (i)     The appeal is allowed;
     (ii)    The impugned judgment and order of the High Court is quashed
             and set aside;
     (iii) Respondent Nos. 5 and 6 are directed to handover the custody
           of the minor child Sugandha Das forthwith; and
     (iv) We, however, permit respondent Nos. 5 and 6 to meet the
          minor child Sugandha Das at the residence of the appellant
          every Wednesday between 04:00 pm and 06:00 pm.
18. Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Nidhi Jain