Rajesh K. Gupta v. Ram Gopal Agarwala, (SC) BS82842

Rajesh K. Gupta v. Ram Gopal Agarwala, (SC) BS82842 SUPREME COURT OF INDIA

Before:- R.C. Lahoti, CJI and G.P. Mathur, J.

Criminal Appeal No. 633 of 2005 (Arising out of S.L.P. (Criminal) No. 1471 of 2005). D/d. 28.4.2005.

Rajesh K. Gupta - Appellant

Versus

Ram Gopal Agarwala and others - Respondents

For the Appellant :- Gopal Subramanium, Sr. Advocate with Ms. Meera Mathur, Rajesh K. Gupta and J.P.N. Gupta, Advocates.

For the Respondent :- R.K. Jain, Sr. Advocate with Yunus Malik, Reetesh Singh and Surya Kant, Advocates.

In case of dispute between husband and wife regarding custody of minor child, paramount consideration is welfare of child.

NOTE

Hindu Marriage Act - Custody of child in case of dispute between the parents. The paramount consideration is the welfare of the child and not the legal rights of either party.

A. Constitution of India, Article 226 - Custody of minor child of 2 years - Husband and wife living separately - Wife living with parents - Husband claiming custody on the ground that his wife had mental disorder - Medical reports showed that she was not suffering from any such mental ailment, which may be termed as serious - Custody given to mother - Her father was well off - In case of dispute between the husband and wife regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties. 2001(2) RCR (Civil) 613 (SC) relied.

[Paras 7, 8 and 9]

B. Constitution of India, Article 226 - Habeas corpus petition by father claiming custody of minor child, which was in custody of mother - In an application seeking a writ of 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 - In case of dispute 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.

[Paras 7 and 8]

Cases Referred :-

Dr. (Mrs.) Veena Kapoor v. Varinder Kumar Kapoor, (1981)3 SCC 92.

Syed Saleemuddin v. Dr. Rukhsana, 2001(2) RCR (Civil) 613 (SC) : [(2001)5 SCC 247].

JUDGMENT

G.P. Mathur, J. - Leave granted.

2. This appeal by special leave has been preferred against the judgment and order dated 10.3.2005 of Delhi High Court by which the habeas corpus petition filed by the appellant was disposed of with certain directions.

3. The appellant Rajesh Kumar Gupta is an Advocate-on-Record and is practicing in the Supreme Court of India since 1996. His marriage with Smt. Aruna Gupta daughter of Shri Ram Gopal Agarwala (respondent No. 1 herein) took place on 24.8.1997 and a daughter Rose Mala was born out of the wedlock on 5.6.2003. It appears that some differences have arisen between the appellant and his wife Smt. Aruna Gupta and currently she is living along with her parents, who have also been arrayed as respondent Nos. 1 and 2 in the special leave petition. The dispute here is about the custody of the child Rose Mala, who is with her mother. The appellant filed a habeas corpus petition in the Delhi High Court seeking the custody of his daughter Rose Mala mainly on the ground that she had been abducted by respondent Nos. 1 and 2 on 6.3.2005 and that on account of mental ailment with which his wife was suffering, the custody of the child should be given to him.

4. After hearing learned counsel for both the parties the High Court disposed of the petition on 10.3.2005 and the relevant portion of the order reads as under :-

"Mr. R.K. Jain, Sr. Advocate, appearing for the parents and the wife submits that Mrs. Aruna Gupta is ready and willing to give an undertaking to this Court that she would not leave the jurisdiction of this Court until an appropriate order in that regard is passed by the competent Court. We accept the said undertaking which is given to us. On query to Mrs. Aruna Gupta, she has categorically stated that she would like to stay with her parents and would like to retain the custody of the child and that she is not in a position to leave the child.

Considering the facts and circumstances of the case and also upon hearing the counsel for the parties and also on talking to Mrs. Aruna Gupta and upon seeing and observing the child who is found to be in good and perfect condition, we are satisfied that the mother of the child, Mrs. Aruna Gupta, could continue to retain the custody of the child for the present. Ordered accordingly. It shall, however, be open to the petitioner to seek remedy for establishing his right of guardianship in accordance with law which is available to him in the Civil Court. If and when such a remedy is resorted to by the petitioner by filing a petition, the same shall be considered by the appropriate Court in accordance with law. The order passed today giving custody of the child to the mother shall be subject to the order, if any, passed by the civil court. Till then, the custody of the child shall remain with the mother, namely, Mrs. Aruna Gupta.

In terms of the aforesaid order this petition stands disposed of."

5. Shri Gopal Subramanium, learned senior counsel for the appellant, has submitted that the marriage of the appellant with Smt. Aruna Gupta was an arranged marriage, which took place on the basis of an advertisement in the newspaper. After marriage it was revealed that Smt. Aruna Gupta was suffering from serious mental disorder of paranoid schizophrenia for almost two decades. She had been treated in U.S.A. for her illness as at the relevant time her father Shri Ram Gopal Agarwala was working there. After the marriage when the appellant discovered that she was suffering from mental ailment, she was treated in the All India Institute of Medical Sciences. In this connection learned counsel has drawn the attention of the court to the medical reports prepared in several hospitals where Smt. Aruna Gupta had been admitted and had been given treatment for the disease paranoid schizophrenia with which she has been suffering. Learned counsel has further submitted that life and health of baby girl Rose Mala would not be safe, if she is allowed to remain in the custody of the mother. He further submitted that the mother of the appellant will be living with him and she will be able to look after the child.

6. Shri R.K. Jain, learned senior counsel appearing for the respondent Nos. 1 to 3, controverted the submissions made by the learned counsel for the appellant and has submitted that Smt. Aruna Gupta is in perfect health and is not suffering from any mental ailment. He has further submitted that the baby girl Rose Mala is being well looked after. She is in fine condition and the apprehension of the appellant that she would not get proper care from her mother has no basis.

7. It is well settled that in an application seeking a writ of 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 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 [see Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor, (1981)3 SCC 92 and Syed Saleemuddin v. Dr. Rukhsana and others, 2001(2) RCR (Civil) 613 (SC) : (2001)5 SCC 247]. It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father.

8. The medical reports of Smt. Aruna Gupta regarding her treatment in some hospitals in U.S.A. are mostly of the year 1984 and the doctor of Holy Cross Hospital, U.S.A. recorded his assessment as under :-

"Borderline personality disorder with no obvious medical problems on examination or in the laboratory.

PLAN :

No further medical intervention is necessary."

The medical reports of All India Institute of Medical Sciences, which are of the year 2000, do not show that she has been suffering from any such mental ailment, which may be termed as serious. In fact, according to the appellant himself Smt. Aruna Gupta is a case of paranoid schizophrenia and not any kind of serious mental ailment.

9. It is important to note that the 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. The appellant has submitted that his mother will come and stay with him, who will look after the child. It is admitted that currently Smt. Aruna Gupta is living with her parents. Her father Shri Ram Gopal Agarwala 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, therefore, a well-educated and financially sound person who can look after the needs of his daughter and also the granddaughter. The mother of Smt. Aruna Gupta, namely, Smt. Bimala Agarwala, aged about 60 years, is also there to look after the child if an occasion arises. The learned judges of the High Court before whom Smt. Aruna Gupta appeared along with Rose Mala and had also talked to her, have recorded that the child was in good and perfect condition and Smt. Aruna Gupta could be allowed to retain her custody. Having given our careful consideration to the submissions made by the learned counsel for the parties and to the material placed before us, we do not find any ground to take a contrary view and disturb the present custody of Rose Mala and give her in the custody of the appellant.

10. The appeal, therefore, lacks merit and is dismissed.

Appeal dismissed.