K. Gupta Vs. Ram Gopal Agarwala & Ors  Insc 288 (28 April 2005)
R.C. Lahoti & G. P. Mathur
out of S.L.P. (Criminal) No. 1471 of 2005) G.P. Mathur, J.
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.
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.
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.
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.
terms of the aforesaid order this petition stands disposed off."
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.
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.
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 vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed Saleemuddin
vs. Dr. Rukhsana and others (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.
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.
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.
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.
The appeal, therefore, lacks merit and is dismissed.