LexRAJESH K. GUPTA versus RAM GOPAL AGARWALA AND ORS.
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A RAJESH K. GUPTA v. RAM GOPAL AGARWALA AND ORS. APRIL 28, 2005 B [R.C. LAHOTI, CJ. AND G.P. MATHUR, J.] - Constitution of India, 1950-Article 226-Writ of habeas corpus sought by. father for custody of minor child-Child staying with mother and maternal c grand-parents-High Court finding the child to be in good condition allowed the mother to retain custody, until and subject to the order, if any, passed by the competent civil court--On appeal, held: Paramount consideration is welfare of the child and not legal right of either parties-Medical reports do not show the mother to be suffering from any serious medical ailment, as alleged- Maternal grandfather being well-educated and financially sound can look D after the needs of the child and the mother-Maternal grandmother also there to look after the child, if required-Father being lawyer is too busy-No reason to disturb present custody of the child-Guardians and Wards Act, 1890-Sections 7 and 17. E In a writ of habeas corpus, Appellant, a practicing Advocate in Supreme Court, sought custody of his daughter, who was staying with his wife and parents-in-law (Respondents I and 2) on grounds that his daughter was abducted by Respondents I and 2 and that his wife was suffering from a mental ailment. High Court, upon seeing and observing the child found her to be in a good condition, and accordingly held that F appellant's wife could continue to retain custody of the child, until and subject to the order, if any, passed by the competent Civil Court. Appellant was permitted to seek remedy for establishing his right of guardianship in Civil Court. In appeal to this Court, the appellant contended that his wife was G suffering from serious mental disorder of paranoid schizophrenia for almost two decades, and the life and health of the child would not be safe, if she is allowed to remain in her custody. He further submitted that his __.. mother will be living with him and she will be able to look after the child. Dismissing the appeal, the Court, H 946, • RAJESH K. GUPTA v. RAM GOP AL AGAR WALA 947 ~ HELD : I. It is well settled that in an application seeking a writ of A- habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute B between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties. (950-A-BJ Dr. (Mrs.) Veena Kapoorv. Shri Varinder Kumar Kapoor, [1981) 3 SCC 92 and Syed Saleemuddin v. Dr. Rukhsana and Ors .• [2001) 5 SCC 247, relied c on. 2. The medical reports do not show that appellant's wife has been suffering from any such mental ailment, which may be termed as serious. In_ fact, according to the appellant himself his wife is a case of paranoid schizophrenia and not any kind of serious mental ailment [950-E-F) D 3. Appellant is in the profession of law being an Advocate-on-Record in the Supreme Court. A lawyer's profession is very exacting and busy profession and requires lot of time. His father-in-law did his Doctorate in Econometrics from Manchester University, U.K. in the year 1966 and joined the World Bank in 1971 where he held very senior positions. He is, E therefore, a well-educated and financially sound person who can look after the needs of his daughter and also the granddaughter. Appellant's mother- in-law, aged about 60 years, is also there to look after the child if an occasion arises. The Judges of the High Court before whom appellant's wife appeared along with the child and had also talked to her, have F recorded that the child was in good and perfect condition and appellant's wife could be allowed to retain her custody. There is no ground to take a contrary view and disturb the present custody ·of the child and give her in the custody of the appellant. [950-G-H; 951-A-BJ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 633 G of 2005 . ...... From the Judgment and Order dated 10.3.2005 of the Delhi High Court in W.P.(Crl) No. 302 of 2005. Gopal Subramanium, Ms. Meera Mathur, Rajesh K. Gupta and J.P.N. H 948 SUPREME COURT REPORTS [2005) 3 S.C.R. A Gu
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